Nelson Bros Funeral Services Pty Ltd v Victorian WorkCover Authority
[2000] VSC 456
•25 October 2000
| SUPREME COURT OF VICTORIA | |
| COMMON LAW DIVISION | Not Restricted |
No. 5611 of 2000
| NELSON BROS. FUNERAL SERVICES PTY. LTD. | Plaintiff |
| v. | |
| VICTORIAN WORKCOVER AUTHORITY, JAMES O'NEIL ARNOTT | Defendants |
---
JUDGE: | ASHLEY J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 16, 17, 18 October 2000 | |
DATE OF JUDGMENT: | 25 October 2000 | |
CASE MAY BE CITED AS: | Nelson Bros Funeral Services Pty. Ltd. v. Victorian Workcover Authority & Anor. | |
MEDIUM NEUTRAL CITATION: | [2000] VSC 456 | |
---
CATCHWORDS: Occupational Health and Safety – Investigation of possible offences against the Occupational Health and Safety Act 1985 – Requirement by inspector that documents be produced by an employer – Whether requirement objectionable in whole or part as being not made in accordance with or for the purposes of execution of the legislation – Whether request was beyond the inspector's powers – Allegation of orchestrated campaign of oppression of the employer – Limits upon an investigator's power to require the production of documents.
---
APPEARANCES: | Counsel | Solicitors |
For the Plaintiff | Mr. P.C. Dane QC | Tanya Cirkovic & Associates |
| For the Defendants | Mr. O.P. Holdenson QC with Mr. R.Peters | Arnold Bloch Leibler |
HIS HONOUR:
The Form of These Reasons
At trial's end I indicated to the parties that I could either deliver an expansive, reasoned decision, or else ‑ but only if the parties were minded to accept it ‑ short‑form reasons in which I stated peremptorily the conclusions I had reached and the orders I would make. Counsel for the plaintiff told me that his client desired full reasons. Several days later, after I had written a good part of my decision on that footing, the solicitors for the parties informed my Associate that they now agreed to my providing short‑form reasons. In the event, it seemed better to me that I complete my reasons in the relatively expansive form in which I had by then substantially written them; and that they should be delivered in that form. Bearing in mind, however, the position ultimately adopted by the parties, my reasons as now published do not descend in all respects to the particularity that might otherwise be expected.
The Proceeding
Before me is an originating motion filed on 1 June 2000 and later amended.
The plaintiff is Nelson Bros. Funeral Services Pty Ltd (Nelson). At relevant times it carried on the business of funeral directors from five premises in Melbourne and one premises in Ballarat, and employed about 30 people.
The defendants are Victoria WorkCover Authority (the Authority or VWA) and James Arnott. The former is a body constituted under the Accident Compensation Act 1985.
By s.8 of the Occupational Health and Safety Act 1985 (the Act) the Authority is confided certain functions. By s.38(1) ‑
"The Authority may appoint an officer or employee of the Authority to be an inspector for the purposes of this Act".
The second defendant, Mr Arnott, is an inspector appointed by the Authority for the purposes of the Act.
In purported reliance upon s.39(1)(i) of the Act Mr Arnott required the plaintiff to produce a number of documents in connection with what was said to be an investigation whether the plaintiff had committed an offence against s.54(1) of the Act. The request for documents (I shall speak as a matter of convenience in the language of 'request' rather than 'requirement'; and in the singular) was made on a number of occasions. Some of the requests overlapped. The parties agreed that the request sought documents described in the plaintiff's submissions as follows:
"i)A list of any and all current and previous employees of the plaintiff, including but not limited to Oscar Diaz and Tony Favier, including addresses and telephone numbers, and starting and termination dates, from 1 January 1997 until 18 April 2000;
ii)A list of any and all funerals conducted by the plaintiff per year, including but not limited to funerals attended by Oscar Diaz and Tony Favier from 1 January 1997 until 18 April 2000;
iii)A list of any and all contractors engaged by the plaintiff for the purposes of funerals or related activities, including start and termination dates from 1 January until 18 April 2000;
iv)Copies of tape recordings made by the plaintiff of conversations between it and the defendants;
v)Any and all financial accounts for the years 1996‑97, 1997‑98 and 1998‑99;
vi)Any and all Income Tax Returns for the years 1996‑97, 1997‑98 and 1998‑99;
vii)Any and all Group Employer Records including copies of Group Certificates for the years 1996‑97, 1997‑98, 1998‑99 and 1999‑2000; and
viii)A trial Balance to 30 April 2000 or the most recent Trial Balance available".[1]
[1]These requests were made by Exhibits RN30 and RN34 to the affidavit of the Theophilus Robert Nelson sworn 31 May 2000 in this matter. I shall hereafter refer to them as the paragraph (i) to (viii) requests.
I referred a few moments ago to an investigation whether the plaintiff had committed an offence against s.54(1) of the Act. This is what that sub‑section says:
"54. Discrimination against employees etc.
(1)An employer shall not dismiss an employee or injure an employee in the employment of the employer or alter the position of an employee to the detriment of the employee by reason only that the employee ‑
(a)performs or has performed any function or duty as a health and safety representative or as a member of a health and safety committee; or
* * * * *
(c) assists or has assisted or gives or has given any information to an inspector, health and safety representative or health and safety committee; or
(d) makes or has made a complaint in relation to health and safety to the employer, a fellow employee, inspector, health and safety representative or health and safety committee."
By its amended originating motion Nelson seeks the following relief:
"1.A declaration that each of the requests for documents made by the defendants and dated:
(a) 18 April 2000;
(b) 28 April 2000;
(c) 13 May 2000; and
(d) 19 May 2000;
was invalid on the grounds that;
i)it was not made in accordance with the provisions of the Occupational Health and Safety Act (Vic) 1985;
ii)it was not made for the purpose of execution of the Occupational Health and Safety Act (Vic) 1985;
iii)it was beyond the powers of the defendant under s.39 of the Occupational Health and Safety Act (Vic) 1985; and
iv)so unreasonable that no reasonable Authority would have made the request."
It was not debated at trial whether this matter was properly commenced by originating motion. I assume, without deciding, that such commencement was appropriate.
Counsel for the defendants submitted at trial that the plaintiff was not entitled to any of the relief which it sought. That submission was founded upon matters of substance; not any issue of form.
The Arnott Investigation
By s.39(1) of the Act ‑
"an inspector may for the purposes of the execution of this Act or the regulations
...
(i)require the production of, examine and take copies of any document or any part of any document;
...
(k)exercise such other powers as may be necessary or as are conferred upon the inspector by this Act or the regulations."
On about 10 February 2000 the second defendant was assigned the investigation of allegations that the plaintiff had committed offences against s.42(1) of the Act by refusing access to its premises to another inspector, Mr Mason, and a union official Mr McGee.[2]
[2] Mr Mason having sought the attendance of Mr McGee ‑ see s.39(2) of the Act.
The occasion of the alleged refusal was 25 January 2000.
In the course of interviewing Mr Mason about the matter just mentioned, Mr Arnott's attention was drawn by Mr Mason to possible breach by the plaintiff of s.54(1) of the Act. According to paragraph 4 of Mr Arnott's affidavit sworn 15 September 2000 he was told that "the plaintiff may have discriminated against some of its former employees because they had made health and safety complaints".
Before dealing with the investigation of possible breach of s.54(1), it is desirable to address the allegation of possible breach of s.42(1) of the Act.
Following investigations by Mr Mason it was established in December 1999 that there was (or were) no designated work groups established at the plaintiff's work place. The existence of such groups (or it may be a single group) is a necessary precondition to the election of health and safety representatives.[3] There were persons who understood themselves to be or who claimed to be health and safety representatives at that time. But they could not have been validly elected.
[3]See generally ss.29 and 30 of the Act.
In the event, a proposal in respect of designated work groups was made by the employer and put to the ballot in mid‑January 2000. The employer's proposal was that two designated work groups be established ‑ one for metropolitan employees and one for Ballarat employees.
It was, I think, absolutely inevitable that the ballot would result in a division of opinion. Even before it was held a minority of the employees had requested the intervention of the Authority in the process.
In the event, the ballot was held and the vote was 22 to 7 in favour of the plaintiff's proposal.
No protocol had been established before the ballot was held as to what would constitute agreement upon the composition of designated work groups. Mr Mason, who had not previously been involved in a dispute about the composition of such groups, appears to have been persuaded that the vote did not conclude the issue. Ultimately, whether it was truly necessary or not, the plaintiff agreed to the formation of a "project team" of employees to consider alternative options.
The next step was that the seven employees who had voted against the proposal re‑stated the position, previously put by them, that Mr McGee (an organiser with the Australian Workers Union) represent them concerning composition of the designated work groups ‑ by putting forward an alternative to the employer's proposed composition of such groups.
In light of all the evidence I heard one would have to be blind to the reality of industrial relations not to conclude that this was a largely non‑union shop and that the seven employees with Mr McGee as their standard bearer represented the union minority. Even a cursory glance at the Act shows the manner and extent to which the activities of health and safety representatives may impact upon the conduct of a business, and the potential for such representatives to seek union assistance in their work. The history of Mr McGee's involvement in a December 1999 attempt to have Mr Favier, a union member, elected to be a health and safety representative ‑ the attempt failed for want of there being properly constituted designated work groups ‑ shows clearly enough Mr McGee's understanding of the potential for increasing union involvement in the workplace via the important and emotive issue of workplace safety. Depending upon the way in which designated work groups were constituted, the potential for election of union members as health and safety representatives might be increased. Obviously enough, in view of the vote on the ballot, that potential was low if the employer's proposal had been implemented.
In the event, a meeting was called for 25 January at which meeting any alternative proposal for composition of designated work groups was to be put forward. Mr Mason, in light of the request that Mr McGee represent the seven employees, requested his assistance at the meeting. He and Mr McGee attended the workplace on 25 January. In substance, according to Mr Mason, the plaintiff refused to let Mr McGee on site; and that he took to be obstruction of himself in exercising his powers, and wrongful refusal to allow Mr McGee to assist him.
Mr Arnott was informed about this sequence of events by Mr Mason. Having been so informed he said to Mr Mason that he thought that "if the ballot was conducted and that was the result, then that would seem to me to conclude the issue".
Later in his evidence Mr Arnott told me that, although by reason of this proceeding the obstruction investigation "has stalled", he had already expressed an opinion whether a charge should be laid (inferentially, in respect of this matter) to "the chief executive" who must ultimately decide whether there is to be prosecution or not. Mr Arnott's observation to Mr Mason suggests, I think, the likely import of his expression of opinion.
I will have something to say later about the designated work group dispute in another connection. For present purposes it is enough to say, having outlined the main circumstances of the matter, that its investigation does not bear upon the request for documents now under consideration.
Returning to the issue of possible breach by the plaintiff of s.54(1) of the Act, on 20 March 2000, according to paragraph 5 of Mr Arnott's affidavit, Mr McGee attended and made a statement in which he identified four former employees of the plaintiff who may have been discriminated against (implicitly, because they had made health and safety complaints).
It is common ground that three of the former employees were dismissed effective as at 31 January 2000. Those employees included the Mr Favier to whom I referred a few moments ago. The fourth employee had, as I understand it, resigned his position a little earlier.
Mr Arnott attempted to contact the four employees. Only one contact was made ‑ with Mr Favier. That former employee made a statement in the form of a deposition on 7 April 2000. His statement, and the statement made by Mr McGee (which was apparently also in the form of a deposition) satisfied Mr Arnott, as he said, that there was a possible breach of s.54(1) which merited further investigation.
In final submissions counsel for the plaintiff did not seek to challenge Mr Arnott's bona fides. Had he done so, I would have rejected that challenge. Mr Arnott's evidence satisfied me that he had approached his investigation in good faith. I add only, although it does not affect that conclusion, that it might be thought regrettable that Mr Arnott delayed in informing the plaintiff just what allegation or allegations were being investigated. Mr Arnott had already obtained statements from Messrs McGee and Favier by the time that the first request for documents was made.
Counsel for the plaintiff submitted, however, that Mr Arnott had been left with a single possible victim of discrimination ‑ that is, Mr Favier; and that on analysis Mr Favier's statement did not provide a basis upon which to pursue an investigation. The investigation was, counsel submitted, foredoomed to failure; it could never lead to the initiation of a prosecution, still less conviction. So, it was said, the request for documents was not warranted by the opening words of s.39 of the Act.
It is, I think, doubtful that Mr Arnott sought to maintain the position that, in the absence of other statements of complaint, he was investigating a possible breach of s.54(1), other than in the case of Mr Favier.[4]
[4]See, for example, T.147 lines 22‑26.
In connection with that former employee, Mr Arnott described the possible discrimination that he was investigating this way:
"The discrimination occurred initially when the employee was disciplined for taking his jacket off at the funeral because it was too warm ... then he was ... subsequently elected health and safety representative ... and then after that, subsequently retrenched from the company".
Asked how he linked that possible discrimination with the request for documents, Mr Arnott said this:
"... the reason the complainant was given for his termination was that the company business wasn't as good as it could have been and that employees needed to be retrenched for economical reasons. If that is the case, then the company financial records should show that, and if that was the case, then regardless of whether he did make a complaint or regardless of whether he was a health and safety representative, the company would be entitled to retrench him on those grounds. So if the financial records of the company showed a downturn in business, then it would support the company's view that he was retrenched for those reasons; and if the financial documents show or don't show a downturn in business, then it would leave me to believe that the complainant may be correct."
Asked by me how financial accounts going back over a four‑year period could possibly shed light on the reason for Mr Favier's redundancy, Mr Arnott replied:
"--- Because, Your Honour, to ‑ so that we can make a fair assessment of how the business goes from year to year. It may have ups and downs every year where there is ‑ it may be seasonal, there may be busier periods, there may be periods when it is not so busy, and therefore to make a, an assessment of whether this year is any different from other years, and whether retrenchments occurred in those years, in the slack periods, or whether employees have been carried during those slack periods. The ‑ so that we can see whether there is a pattern there and whether there is action by the company in laying employees off is consistent with what may have happened in [2000]"
In order to understand the submission that there was no basis for Mr Arnott pursuing an investigation, it is necessary to understand the information provided to him concerning the three matters which he identified. For this purpose I focus on Mr Favier's statement, which went into evidence.
+ The Coat Removal Incident
On 2 December 1999 Mr Favier attended a funeral in the course of his employment. It was a very hot day. He began to feel the effects of heat. He took his coat off. The more senior employee at the funeral told him to replace his coat. He, Mr Favier, told his superior that he intended to ask the deceased's family whether they objected to him leaving his coat off. That is what he did. There being no objection, he left his coat off. The superior reported the matter to a principal of the plaintiff, Robert Nelson. The next day, another employee who had taken his coat off during part of the funeral was called in and given a dressing down by Mr Nelson. He, Mr Favier, was also called in. He told the superior who conveyed the call that as a union member he was entitled to have an independent witness with him. By telephone, he told Mr Nelson the same thing. He was then suspended for a few days on full pay. He was told to prepare a written explanation for his action. He sought and obtained an opportunity to speak with Mr Nelson forthwith. According to his statement, this is what then transpired:
"He just basically repeated his statement about the suspension and added that I was suspended with full pay so that I was not being financially disadvantaged. I said, is there anything I can say about it. He replied sarcastically, I suppose you are going to tell me it was hot. I said, yes, I suppose I am. He replied in the same sarcastic tone that it's been quite hot for quite a few years. I said, if that's the case I will be leaving here and going to the union. He said, do what ever you want to do. I left work and went to the Union and David Cragg."
On 6 December, according to Mr Favier's statement, he attended his work in the company of a union organiser. He had with him a written explanation prepared with the assistance of that organiser. The letter of explanation was given to Mr Nelson. The following day he was called in. According to his statement, this is what transpired:
(Mr Nelson said) "I have looked at your letter of explanation and have asked Bob Kater if at any time you told him you felt ill. He said you had not. If at anytime in the future you feel ill, you are to tell the supervisor. If you do not feel well you should not be driving, as you are a danger to yourself, the passengers and Nelson Brothers' cars. Further, to have asked the deceased's family if it was okay to take off coats is not an appropriate action to take. Further, as you no doubt know WorkCover called in yesterday and want a response from us on heat. I said did they, he replied I am sure you already knew that. I didn't respond, feeling it would have been pointless at that stage and I shrugged my shoulders. I didn't contact WorkCover I only contacted the Union I didn't know what they did about it at that point.
Robert Nelson went on to say we will be responding but I can assure you our company policy will be to keep our coats on, that will not change, and if you remove your coat again that will be grounds for summary instant dismissal, do you understand. I replied yes and got up and left."
Mr Arnott was provided by Mr Favier with a copy of the latter's letter of explanation to Mr Nelson. According to the submission of counsel for the plaintiff it did not in all respects correspond with the account of events provided by Mr Favier in his statement to Mr Arnott, and the areas of non‑correspondence were significant.
+ The Health and Safety Representative Election:
This was Mr Favier's account of things:
"Glen Boorer who was the elected Health and Safety rep, he had been complaining for some time about the reluctance of the company to implement health and safety issues
Gen (sic) resigned as the safety rep on 20/12/9 (sic). Robert Green, who was another safety rep resigned from the company on the same day. The next day which was 21/12/99 Steve McGee arrived at Nelson Brothers, I think at the request of Robert Green to conduct an election for a new health and safety rep to replace Glen Boorer.
Steve McGee came to 196 Barkly Street at the end of the day, it was about 5 pm. He came to the garage where there were a number of us there washing cars and finishing up for the day. He said that Glen Boorer had resigned as OHS rep and that we needed to have an election for a new rep. A meeting was held among the drivers and I was nominated for the position of OHS rep for the workgroup which comprised of the standby crew which were 12 people there were drivers and funeral conductors one mortuary attendant and one office person. I was the only one nominated and a vote was taken and I was elected. There were 6 people present at the meeting to my knowledge there was no prior notice of the meeting given to the workgroup that there was going to be an election for a new rep held. After the election myself Robert Green and Steve McGee went into the office to inform the management of the election and inform them that I was the new rep."
According to Mr Favier, Mr Nelson was "was not happy about issues concerning the election". He, Mr Nelson, called in the plaintiff's industrial relations consultant. Tensions heightened. The police were called. They attended but did not intervene.
+ Termination
This was Mr Favier's account, including his expressions of opinion:
"On the 31/1/2000 myself and two other employees of Nelson Brothers were told that we were being made redundant. The other two employees were Oscar Diaz and Chris Edwards. We were called in about roughly mid day by Robert Nelson to the office. He said something like business had been bad over the last year and that economies had to be made and that as of now on the basis of last on first off the three of us were retrenched."
and
"I don't believe that the reason that I was retrenched was for economic reasons, in the time that I was there I didn't observe any significant downturn in business that would justify letting three people go at the one time out of a workforce of only about 29 or 30 people especially in the on the road staff who actually do the work and conduct the funerals and pick up bodies, that is where the money is made. I was not aware of any discussions or rumours of upcoming retrenchments. A driver named Tim Podporin resigned in mid to late November 1999 he was replayed by Chris Amos who was dismissed after about 5 weeks as he was unsatisfactory, he was not replaced. Robert Green resigned on the 20/12/899 and he was not replaced.
Malcolm Frame who was a driver resigned in mid January 1999 and he wasn't replaced. I believe I was targeted by the company because I complained of the heat and took my jacket of (sic) at a funeral, and because I became the elected health and safety rep for the drivers".
Against the background of Mr Favier's statement it is possible to examine the plaintiff's submission.
+ The Coat Removal Incident
Mr Arnott seemed to suggest in his evidence that there was a possibility of breach of s.54(1)(d) in that Favier's position had been altered to his detriment ‑ by his being stood down, albeit on full pay ‑ because he made a complaint to another employee, his supervisor, on the day when he removed his coat because of the heat. Doubtfully, Mr Arnott also perceived a possible link between complaint concerning a health and safety issue (that is, the obligation to wear a coat in very hot weather, this inducing unwellness) and Mr Favier's dismissal.
The request for documents is plainly directed to the reason for the redundancy; not to any alteration of Mr Favier's position to his detriment by reason of his being stood down. If the investigation, so far as it turned upon the coat removal incident, pertained only to the stand down then ‑ always assuming that there was a complaint within the meaning of s.54(1)(d) and that being stood down in the manner described could be categorised as a detriment ‑ it can at least be said that the investigation and the request were unrelated. But it seems to me that Mr Arnott's evidence did not exclude as a subject of investigation the possible linkage between the coat removal incident, its aftermath, and Mr Favier's employment being terminated; and that a complaint to the employer in relation to health and safety might be discerned out of what transpired between 3 and 6 December 1999. I reject, then, the plaintiff's contention that Mr Favier's statement did not found a basis upon which to pursue an investigation in this connection.
+ The Health and Safety Representative Election
Even if one accepted as a fact Mr Favier's stated belief that a reason for his being terminated was his election as health and safety representative, I cannot see how s.54(1) could come into play. The election was irregular on its face. Moreover, there being no designated work groups as at 21 December 1999, a prerequisite for the election of health and safety representatives did not exist. If Mr Arnott's investigation was founded only upon the proposition that Mr Favier's statement revealed, in connection with the election in question, and later termination, a possible breach of s.54(1), I would conclude that the investigation had no revealed foundation.
+ Termination
Termination of a worker's employment is not wrongful per se. It is wrongful when it is inflicted "by reason only" of one or more circumstances identified in s.54(1). In this case the fact of termination is indisputable, and, at least in general terms, so is the reason advanced by the employer for termination.[5]
[5]Though compare Mr Favier's account of what he was told and paragraph 13 of Mr Nelson's affidavit.
So also there is no doubt that the coat removal incident occurred ‑ though its detail may be debatable.
As the plaintiff's case was argued in the present connection, the question is whether, in the circumstances, Mr Favier's statement provided the foundation for an investigation whether a complaint by him in relation to health and safety was the reason for his dismissal. In my opinion it did.
It follows from what I have said that I reject the plaintiff's submission that there was no basis for pursuing an investigation; that it was foredoomed to failure. In so deciding I have not found it necessary to consider the defendants' submissions ‑ which I consider raised matters of substance ‑ that it is wrong to speak of an investigation being foredoomed to failure, that the circumstances in which curial proceedings may be stayed as an abuse of power for being foredoomed to fail cannot be adapted to justify the staying of an investigative process[6] and that the plaintiff's contention was really an attempt to litigate a matter foreclosed by earlier order of a Master.
[6]Walton v. Gardiner (1993) 177 CLR 378 per Mason CJ, Deane and Dawson JJ. at 392‑393 was cited by counsel for the plaintiff.
Events Preceding Mr Arnott's Investigation
From early December 1999 until early April 2000 Mr Mason, the inspector to whom I have earlier referred, visited, either singly or in company, the plaintiff's premises on no less than ten occasions in connection with health and safety matters. From time to time he conferred with his superiors, including a Ms Kilduff, concerning the plaintiff's situation.
Mr Mason was assigned investigation of the plaintiff by Ms Kilduff. Initially his work involved consideration of a number of health and safety issues that had been raised by a letter of complaint dated 14 November 1999. That letter, sent to the Authority, had been signed, it seems probable, by one of the minority of union members employed by the plaintiff.[7]
[7]Note that on 3 December Mr McGee spoke with Ms Kilduff and was aware of the letter and its contents.
In any event, the issues, or supposed issues, concerning health and safety multiplied between Mr Mason first attending upon the plaintiff in early December 1999 and April 2000. There was the aftermath of the coat removal incident, the health and safety representative "election" of 21 December 1999, new health and safety issues (for example, the allegation that a worker had been exposed to infectious material), the continuing designated work groups controversy, the alleged obstruction of Mr Mason and Mr McGee in connection with that issue, and then the termination of the employees and the allegation of breach of s.54(1).
Throughout the pertinent period the workplace was, it seems clear, the site of a conflict between a union, the minority of the plaintiff's employees who were union members, and an employer which at least was unfavourably disposed to what it perceived to be union interference in its activities. Health and safety issues were the combustible material of the conflict.
Mr Mason, I do not doubt, became caught up in the conflict. It may fairly be said that he accepted more easily than others may have done the validity of the various complaints that were made. It may also fairly be said that in dealing with the employer he was excessively bureaucratic, that he failed to always make it clear just what complaint had been made and was being investigated, and that his role in the imbroglio that developed about designated work groups was less than satisfactory. It is understandable, in the circumstances, that the plaintiff had and expressed disquiet about Mr Mason's conduct. But nothing in his evidence, or in the documents placed before me, led me to doubt his bona fides.[8] The evidence generally showed that issues did arise under the Occupational Health and Safety legislation which required attention; and resolution of health and safety issues is a matter of real importance.
[8]In this connection I note, for example, that when Mr Mason did finally hear Mr McGee's proposal for designated work groups (at a meeting held on 4 April 2000) he reported to his superior adversely to that proposal, and supported the plaintiff's earlier proposal.
A little earlier I referred to Mr Mason's immediate superior, Ms Kilduff. That lady described herself as a "group leader" and as Mr Mason's "manager". She said ‑ and I accept ‑ that she monitored all the work that he did. Her authority to do so was not debated before me.
She, Ms Kilduff, had a number of communications with Mr McGee, the union organiser. It was a communication from Mr McGee in December 1999 which led her to give Mr Mason the job of dealing with the health and safety issues that had been raised by the letter of 14 November. A further communication from Mr McGee advised her of the coat removal incident. Another communication again ‑ this time at a meeting held on 22 December 1999 ‑ raised an allegation of discrimination against a health and safety representative. A still further communication, in February 2000, raised the allegation that there had been a breach of s.54(1) by reason of the dismissal of three of the plaintiff's employees. Ms Kilduff discussed that allegation with her superior, and it was decided to refer that matter to an inspector in the so‑called Investigations Unit. Ms Kilduff said, and I accept, that she did not initiate the contact with a member of that unit.
Counsel for the plaintiff submitted, in his final address, that there had been a pattern of oppression of his client by VWA, orchestrated by Ms Kilduff or someone superior to her.[9] In that oppressive conduct Mr Mason was the guileless foot soldier. The conduct involved two elements: pettifogging investigation and re‑investigation of health and safety issues; and the institution and prosecution of a s.54 investigation ‑ albeit the latter was being pursued by Mr Arnott, a man whose bona fides were not challenged.
[9]In developing his submission, counsel very clearly identified Ms Kilduff as the author of the allegedly oppressive conduct.
According to this submission the declaration sought by the plaintiff should be granted because the investigation must be viewed as part of an orchestrated campaign of oppression, unrelated to any purpose for which a s.39 investigation is authorised. The circumstances alleged, I add, were somehow said to justify my making an order against VWA, despite the fact that it is Mr Arnott who is conducting the investigation, and who made the request for documents.
I reject the plaintiff's submission, notwithstanding that I formed the clear opinion that in a number of respects Ms Kilduff's understanding of the legislation appears to have been imperfect, that she seems to have been uncritically accepting of allegations made by Mr McGee, and that her evidence displayed what in my opinion were marked inconsistencies.[10] It was never put to Ms Kilduff (I did not ignore the fact that she was the plaintiff's witness) that she was the architect of a campaign of oppression conducted against the plaintiff by the VWA.
[10]See, generally, T.115 line 7 to T.118 line 2, and T.132 line 26 to T.140 line 1.
I think it is entirely unlikely that there was such a campaign. What could be the explanation for its being initiated? The worst that can be said, I think, is that a combination of bureaucracy, want of understanding of the legislation, and gullibility led to a situation in which the plaintiff was subjected to more intensive scrutiny and action by Mr Mason and Ms Kilduff than was called for in all the circumstances. That falls well short of making good the allegations pursued for the plaintiff.
The Individual Requests For Documents
I should deal discretely with the classes of documents whose production has been sought. In each case production was sought in reliance upon s.39(1)(i) of the Act.
In my opinion the plaintiff should not be obliged to comply with the request to produce the paragraph (i), (ii) and (iii) documents.
The requests are for production of lists. Counsel for the defendants readily agreed that s.39(1)(i) is concerned only with production of documents which exist at the time when their production is sought. I do not agree that the requests under consideration should be held to be within power because there might have been such lists in existence at the time when the requirements were made. I think it is very clear, particularly by contrast with other classes of documents sought by Mr Arnott, that the requests for the production of lists purported to require the creation of documents.
In my opinion the respondent should not be obliged to comply with request to produce the paragraph (iv) documents.
It appears that, on occasions when Mr Arnott held meetings with a principal of Nelson, the latter made a tape‑recording of the conversation. Transcripts of the tapes were exhibited to Mr Nelson's affidavit filed in this proceeding. Mr Arnott agreed that the transcripts in substance conformed with what had been said. Asked if anything had been said in any of the conversations which could be said to constitute an admission, or otherwise be relevant to a possible prosecution, Mr Arnott referred only to the fact that Mr Nelson had admitted standing down the former employee, Mr Favier, in early December 1999 after the latter had removed his coat in the course of a funeral during hot weather. That the employee was stood down is not in debate. It has not been a live issue for many months. The tapes have been shown, in the event, to have no relevance to Mr Arnott's investigation of a possible offence on the part of the plaintiff.
I turn to the requests for provision of financial records made by paragraphs (v), (vi), (vii) and (viii). Mr Arnott did not formulate those classifications. The formulation was that of an internal accountant (apparently employed by VWA) who told Mr Arnott that provision of such documents would enable her to answer questions which he considered relevant: whether there was a pattern of decline in the plaintiff's business as would support its assertion that Mr Favier was retrenched for economic reasons; whether the plaintiff's business had suffered downturns or fluctuations in the past ‑ and if so, then whether workers had been put off in such circumstances.
Mr Arnott did not pretend that he understood the detail of what had been requested. He told me that he had never seen a company tax return. His evidence in answer to questions by counsel for the plaintiff showed that he had very little idea of the likely magnitude of the task which was imposed by the requests.
Mr Arnott did not suggest, if there was no observable downturn in the plaintiff's business preceding Mr Favier's dismissal, that the foundation for a prosecution would evidently be disclosed. But he said, I think justifiably, that it would lead him to believe that Mr Favier's complaint might have substance.
According to the submission of counsel for the plaintiff, it was permissible for Mr Arnott to seek the assistance and guidance of the accountant in determining what documents were needed or might be helpful in conducting the investigation. But the requests under consideration "were not valid", because Mr Arnott had not turned his mind to the effect and purpose of the documents requested. The requests were in truth the dictate of another person who might not know the circumstances of the investigation. Counsel referred to and relied upon R. v. Anderson ex parte Ipec Air Pty Ltd.[11]
[11](1965) 113 CLR 117 at 201‑202 per Menzies, J.; see also per Kitto, J. at 193. Their Honours dissented in the result of the particular proceeding; but counsel submitted that this was irrelevant to the statements of principle upon which he relied.
I reject the submission. Even if the dictum in Anderson could apply in the case of a request authorised by s.39(1)(i) of the Act (and the issue which arose in that case was quite different to that which is now under consideration) I do not accept that Mr Arnott did not satisfy himself, so far as he was able, that the requests as formulated were "for the purpose of the execution of (the) Act". He determined what material he was looking for as a step in his investigation. He asked the accountant what documents should disclose the information which he was seeking. The evidence is, then, that the accountant was apprised of the pertinent issue as Mr Arnott perceived it. The formulation of the request, intended for consideration by the plaintiff's accountant, was indeed the work of the accountant from whom Mr Arnott sought advice. But the fact that it was couched in language which as a layman he did not fully grasp does not mean, in all the circumstances, that it ceased to be his request.
The use to which past trends in the plaintiff's level of business or profitability and the number of people it employed could be put if a prosecution was launched was not much debated. It might well be the case that evidence of such trends ‑ assuming that definite trends were observable ‑ could never get into evidence. But that would not be a reason for excluding investigation of the presence (or absence) of such trends. Legitimate investigation is not necessarily confined to the task of obtaining material which will be admissible in a later prosecution.
There is, however, a question whether the documents sought by paragraphs (v), (vi) and (vii) could possibly reveal a pattern such as Mr Arnott claimed could be pertinent.
Counsel for the defendants made it clear in his final address that Mr Arnott wanted disclosure only of the profit and loss statements and balance sheets of the plaintiff for each of the years 1996/97, 1997/98 and 1998/99. That is entirely compatible with Mr Arnott's evidence that he was not concerned to audit the accuracy of the tax returns. So understood, the investigator seeks all of year records which could not be expected to show business performance fluctuations within any one year. Employee group certificates showing starting and finishing dates within that year would appear not to be capable of making good a pattern of hiring and firing dependent upon business performance within that year. The most that the documents could show, I think, is that in some years the plaintiff's business performed better than others; and the levels of staffing overall in the better and worse years. Further, even if it was evident upon the documents that there had been no past pattern of terminations in the event of downturn in the volume of the plaintiff's business or decline in its profitability, it is difficult to see how that could logically tend against Mr Favier's termination being for that reason if there was evident downturn in the plaintiff's volume of business or profitability in the period preceding the end of January 2000.
Doubtfully, having regard to the limited use to which it appears the requested documents could be put, I have concluded that the request by paragraphs (v) and (vi) does fall within the boundaries of Mr Arnott's investigation. I cannot say, even if the documents requested were equivocal in themselves, that they might not lead on to further and more productive enquiries. The role of the investigator should not be unnecessarily circumscribed. I accept the submission made by counsel for the defendants that the boundaries of investigation usefully appear by analogy from authorities such as National Crime Authority & Ors v. A1 & Anor[12] and MF1 v. National Crime Authority.[13]
[12](1997) 75 FCR 274 at 286‑287 per von Doussa and Sundberg, JJ.
[13](1991) 33 FCR 449 at 459‑462 per Jenkinson, J.
In referring to "the documents requested" in connection with paragraphs (v) and (vi) I make this clear: what Mr Arnott seeks, as I have earlier noted, is the plaintiff's profit and loss statements and balance sheets for each of the three years. Counsel for the defendants agreed that those records were likely to be reproduced both independently of and within the plaintiff's tax returns. There seems no reason why Mr Arnott should obtain the documents twice over. Counsel did not suggest that there was any such reason.
The documents sought by paragraph (vii) are a necessary part of the search for patterns between hiring and firing and the plaintiff's past level of business and/or profitability. They should show starting and finishing dates, as well as the then addresses of the employees. Once it is accepted that the search for patterns is within the legitimate scope of Mr Arnott's investigation, there could be no objection to the documents requested by paragraph (vii). The same applies to the documents sought by paragraph (viii).
Conclusions Summarised
The requests for documents are in part (paras. (i)‑(iii)) not a request for documents contemplated by s.39(1)(i) of the Act.
The request for documents made by paragraph (iv) is not a request for documents shown to have any relevance to Mr Arnott's investigation of a possible offence by the plaintiff against s.54(1).
The request for documents made by paragraphs (v) and (vi) is within the scope of the investigation which Mr Arnott is conducting, subject only to the two requests in truth overlapping. The only request is for provision of copies of the profit and loss statements and balance sheets of the plaintiff for the three years enquired after.
The request for documents made by paragraphs (vii) and (viii) is within the scope of Mr Arnott's investigation. The documents requested by paragraph (vii), it should be added, in substance will provide the material sought by paragraph (i).
The request for documents is not generally objectionable as being part of an orchestrated campaign of oppression waged against the plaintiff by VWA, with Mr Mason and later Mr Arnott as its guileless instruments. Conduct of several VWA employees ‑ one in particular ‑ antecedent to Mr Arnott's investigation was justifiably criticised. But that conduct was the product of bureaucracy, want of understanding of the legislation and gullibility; not more.
The request for documents made particularly by paragraphs (v) and (vi) is not objectionable as not being in substance the request of Mr Arnott, to which request he had directed his mind.
In light of the conclusions so far stated, I should make declarations in favour of the plaintiff against the second defendant; but not against the first defendant.
Orders
Subject to anything that counsel might say as to form I will make orders in accordance with the following minutes:
1. Declare that ‑
(a)the requests for documents next following were beyond the powers of the second defendant under s.39(1)(i) of the Occupational Health and Safety Act 1985.
"i)A list of any and all current and previous employees of the plaintiff, including but not limited to Oscar Diaz and Tony Favier, including addresses and telephone numbers, and starting and termination dates, from 1 January 1997 until 18 April 2000;
ii)A list of any and all funerals conducted by the plaintiff per year, including but not limited to funerals attended by Oscar Diaz and Tony Favier from 1 January 1997 until 18 April 2000;
iii)A list of any and all contractors engaged by the plaintiff for the purposes of funerals or related activities, including start and termination dates from 1 January until 18 April 2000;"
(b)the request for documents next following was not made by the second defendant for the purpose of the execution of the Occupational Health and Safety Act 1985.
"iv)Copies of tape recordings made by the plaintiff of conversations between it and the defendants;"
(c)the requests for documents next following are to be understood by the plaintiff and complied with as if they were a single request for production of its profit and loss statements and balance sheets for the financial years 1996/97, 1997/98 and 1998/99.
"v)Any and all financial accounts for the years 1996‑97, 1997‑98 and 1998‑99;
vi)Any and all Income Tax Returns for the years 1996‑97, 1997‑98 and 1998‑99;"
2.Order that the proceeding against the first defendant be dismissed. I will hear the parties as to costs.
---
3
0