Patricia Thatcher v Melba Support Services Australia Ltd

[2021] FWC 3674

[2021] FWC 3674

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Patricia Thatcher
v
Melba Support Services Australia Ltd
(U2021/1916)

COMMISSIONER LEE MELBOURNE, 29 JUNE 2021

Application for an unfair dismissal remedy – application for an order for production of documents sought by applicant – parts of application objected to by respondent – disputed relevance – objections upheld – application dismissed.

[1] This matter involves an application made by Ms Patricia Thatcher (the Applicant) under s.394 of the Fair Work Act 2009 (Cth) (FW Act) for a remedy, alleging that she has been unfairly dismissed from her employment with Melba Support Services Australia Ltd (the Respondent).

[2] The Applicant was dismissed by the Respondent for alleged serious misconduct. Against the background of these allegations, and the associated case put again her, the Applicant sought an order for production of various materials by the Respondent. The application was made on 20 April 2021, and a draft order was attached to the application.

[3] On 21 April, the Respondent indicated that the documents sought may be the subject of a permissible objection on the Respondent’s part. I directed parties to convene discussions to resolve any issues pertaining to the order sought. After discussions between the parties, agreement was reached regarding the documents sought at items 1 - 8 and 11 - 13 of the Schedule to the draft order. However, the documents identified at items 9 and 10 (hereinafter referred to as the unredacted documents) remained in dispute, with the Respondent objecting to the production of those documents and the Applicant maintaining that they were necessary.

[4] The details of items 9 and 10 of the Schedule are as follows:

“9. Current original Behaviour Support Plan for client MP (unredacted in full).

10. Current original Behaviour Support Plan for client LOM (unredacted in full).”

[5] The matter was listed for hearing on 27 April 2021 in order to deal with the objections. At the conclusion of the hearing, I determined that the objection to the production of the unredacted documents was upheld and I would not grant the order sought. I also indicated I would provide written reasons for my decision to dismiss the order sought and these reasons follow.

[6] In making the application, the Applicant contended that the unredacted documents were necessary as the documents they had been supplied with was a word document extracted from the original which was “inherently unreliable”. During the hearing, the Applicant submitted that the behavioural support plans must be followed by staff and that the production of the unredacted documents was necessary as:

•  the section dealing with likes and dislikes of the supported person was overly redacted;

•  there could be food allergies in the plan, but they did not know if that was followed; and

•  that one of the clients has autism and likes routine so that has a bearing on getting similar lunch every day and that these things would be confirmed in the behavioural support plans, but it is not known because of the redactions. 1

[7] The Applicant also submitted that the behavioural support plan needs to be read in its entirety and understood in context. As a result of the redactions, the Applicant did not know if there was information in the plan that the Applicant was in fact correctly following. 2 Essentially, it was put that the redacted parts of the plan may be supportive of the Applicant’s case, in that the Applicant complied with those parts of the plan.3

[8] The Respondent objected to the production of the unredacted documents on three grounds. These grounds can be described in summary as the legislative ground, the relevance ground and the privacy or public interest ground.

[9] For reasons that become clear, it is only necessary to deal with the relevance and the privacy ground. The Respondent submitted that the behaviour support plans are only relevant to the extent that the Respondent asserts that they were not complied with by the Applicant. 4 While the behaviour support plans have been redacted, the extracts that have been provided are done so in the context of what the Respondent says the Applicant did not comply with.

[10] Further, that the supported persons are not the ones on trial and their entire care plan including intimate details should not be divulged. 5 It was submitted that the provision of the unredacted documents would represent an unwanted intrusion into the privacy of the two supported persons, and that it is demeaning that their private and personal information be made known to the public. Given the position of the Respondent that the unredacted documents are unlikely to be relevant or assist the Applicant’s case, this needs to be weighed against the public interest considerations of protecting the private information of supported persons who cannot give consent.6

The relevant principles

[11] Commissioner Jones set out a convenient summation of the relevant principles in paragraphs [7] – [13] of ANF v Victorian Hospitals’ Industrial Association, 7 I agree that those are the relevant principles and rely on them. It is not necessary to reproduce the entirety of the paragraphs cited here, however the observations of Munro J referred to by the Commissioner and cited below is particularly relevant to this matter.

[12] The principles applied by the Courts in the exercise of the discretionary power to issue a summons were identified by Munro J in Re Clerks’ (Alcoa of Australia - Mining and Refining) Consolidated Award 1985: 8

“In its exercise of a broad discretion and judgement over use of the power, the Commission will have regard to practice followed in courts of law where a judicial discretion has been applied to regulate use of a subpoena to produce document. Any such subpoena must specify with reasonable particularity documents which are required to be produced. It may be sufficiently specific to identify documents to be produced by reference to the subject matter to which they relate. In the case of a corporation, it is usually appropriate, where the custodianship of documents is not clear, to direct the subpoena to the `Proper Officer’. It is not legitimate to use a subpoena for what, in effect, would be discovery of documents against a person not liable to make discovery, or as a substitute for discovery which should be applied for at the proper time. The documents sought must be of a nature capable of being relevant to an issue which might legitimately arise on the hearing of the matters in dispute. In the first instance the documents are produced to the tribunal upon whom it falls to examine the documents, assess their relevance and determine what access by the parties to the documents may be appropriate; (section 187 of the Act appears to be the statutory counterpart of this principle of practice). A party will not be required to produce documents where to do so would be oppressive; or where the demand for production is a `fishing expedition’, in the sense that it is an endeavour not to obtain evidence to support a case, but to discover whether there is a case at all. Where the proper use of legal compulsion to produce documents is in issue, the tribunal will need to carry out an exercise of judgement upon the particular facts in each case. That judgement requires a balance on the one hand of the reasonableness of the burden imposed upon the recipient, and of the invasion of private rights, with on the other hand, the public interest in the due administration of justice and in ensuring that all material relevant to the issues be available to the parties to enable them to advance their respective cases.”

Consideration

[12] I am not satisfied that the unredacted sections of the documents are capable of being relevant to an issue that might arise. The case put against the Applicant is that she failed to follow particular aspects of the plan in respect to the two supported persons. The aspects of the plan that go to the allegations and are clearly relevant have been produced. The Applicant however is seeking to find out if there is some other aspect of the plan that is redacted which the Applicant may have complied with. It appears that the Applicant is “fishing” to find out if there was some aspect of the plan which she had complied with. However, it is not relevant that the Applicant may have complied with other aspects of the plan. At issue in the proceeding is the alleged failure to comply with the aspects identified. That is to say, the relevant part of the plan is the part that relates to the allegations made. I agree with the Respondent that the plans do not need to be read “in context” as submitted by the Applicant. Of course, it follows that to the extent there are components of the plan that are not known, the Respondent can hardly rely on those components to make good its case that there was a valid reason for the dismissal.

[13] The behaviour support plans for the supported persons contain intimate personal details of the supported persons. As I indicated during the proceedings, privacy matters can be dealt with by the making of confidentiality orders. However, it is still necessary to consider the balance between the invasion of private rights and the administration of justice. In this case, given the lack of relevance of the material sought, there is not a sound basis to make an order that would have the effect of impacting on the private information of the supported persons.

[14] For these reasons, the application for an order for production of the unredacted documents is dismissed.

[15] The parties reached agreement on the majority of the items in the draft order to produce. However, they did not reach agreement on items 9 and 10, and the Applicant continued to press for their production. However, for the reasons set out above, the objection has been upheld, and the application for an order requiring for production of documents to the Commission is dismissed.

COMMISSIONER

Appearances:

M. Davis for the Applicant

B. Allen for the Respondent

Hearing details:

2021.
Melbourne (by telephone):
April 27.

Printed by authority of the Commonwealth Government Printer

<PR731060>

 1   Transcript at PN16 and PN17.

 2   Transcript at PN52.

 3   Transcript at PN73.

 4   Transcript at PN28.

 5   Transcript at PN37.

 6   Transcript at PN47.

 7   [2011] FWA 8756.

 8   Print H2892 at p 2.