Patrick Cannon v Glenelg Shire Council

[2015] FWC 7439

[2015] FWC 7439

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Patrick Cannon
v
Glenelg Shire Council
(U2015/11674)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 29 OCTOBER 2015

Application for relief from unfair dismissal - order for production of documents.

[1] On 19 October 2015, an order to produce was issued to the Glenelg Shire Council at the request of Mr Patrick Cannon. The order was returnable on 22 October 2015. On 22 October 2015 the Council applied to have the order set aside. That application was listed for a telephone hearing on 27 October 2015.

[2] On 27 October 2015, I set aside the orders and issued a new order. These are my reasons.

[3] At the hearing Mr James Gaffey, a legal practitioner representing Mr Cannon and Mr Ben Tallboys, a legal practitioner representing the Council applied for permission to appear. Mr Tallboys did not oppose Mr Gaffey being given permission to appear but Mr Gaffey opposed Mr Tallboys being granted permission.

[4] Mr Gaffey submitted that that Mr Cannon could not represent himself as he does not have the necessary expertise and he was unable to attend the hearing as he had a medical appointment. Mr Gaffey opposed representation for the Council as he submitted it had personnel who were familiar with the Fair Work Act 2009 and the Fair Work Commission. Further he submitted that it was an inappropriate use of the Council resources to engage a lawyer in these circumstances. He further submitted that the Council had frustrated the work of the Commission by not complying with the order to produce. Mr Gaffey relied on comments made in conciliation and submitted that the Council had improperly delayed its response to the order. He submitted that this inappropriate conduct would continue if the Council were permitted to be legally represented.

[5] Mr Tallboys submitted that permitting the Council to be represented would enable the matter to be dealt with more efficiently. He submitted that there were technical and legal objections to the notice of produce and that while the Council’s most experienced Human Resources staff member was present she was not experienced and could not represent the Council effectively. He submitted that lawyers had been involved in this matter and that given the complexity it would be unfair not to permit the Council to be represented by a lawyer in circumstances where Mr Cannon was to be represented.

[6] I granted permission to both parties to be represented at this hearing. They will need to seek permission of the presiding member to appear at the substantive hearing. I accept the submission that Mr Cannon could not adequately represent himself and I further accepted that the matter involved some complexity and it would be more efficient if permission were granted. I further accepted that Ms Janine Johnstone would not be able to effectively represent the Council in this hearing. I do not accept that the cost incurrent by Council is a relevant consideration. I further place no reliance on any matters discussed in conciliation. While I accept that parties are required to comply with orders to produce, even when seeking to set them aside, I find that the Council was given too short a period to comply and did not unduly delay making its application.

Background

[7] Neither party has filed their witness statements or submissions in the matter. In making my decision I have had regard to the application and the response filed with the Commission.

[8] The letter of termination attached to the application sets out the allegations relied upon by the Council to terminate Mr Cannon’s employment.

[9] It was alleged that there had been complaints made in relation to an alleged unapproved structure on a property.

[10] It was further alleged that Mr Cannon improperly accessed Council records for a personal purpose. In doing so it was further alleged that Mr Cannon breached the Code of Conduct, the Fraud Prevention Policy and the Acceptable Computer Use Policy. These allegations related to two separate matters. Council formed the view that Mr Cannon’s conduct was serious misconduct and he was summarily dismissed.

[11] In his unfair dismissal application Mr Cannon did not address the allegations. He submitted that the dismissal was unjust because his conduct did not warrant such action; he had not been provided with written warnings; the Council knew that Mr Cannon disputed that he was guilty of serious misconduct. He said it was unjust because the suspension was contrary to the Council’s disciplinary procedures; the Council did not provide him with the documents he requested which were necessary for him to defend himself; he was not provided with a genuine opportunity to defend himself; he had raised a dispute under the grievance procedure of the Agreement and the Council knew he was going to notify a dispute to the Commission; He said it was unfair because the Council did not follow its disciplinary procedures; he was not given a genuine hearing or opportunity to defend himself; he was not given the reasons for his dismissal and given an opportunity to respond to these reasons before the dismissal; he was denied access to material which would exonerate him; it was carried out on unjustifiable grounds; the Council knew he was unwell and unable to attend the meeting on 17 August 2015; and it was done knowing that he intended notifiying a dispute to the Commission.

[12] The Council relied upon the letter of termination.

[13] The parties agreed that Mr Cannon had a list of the documents he was alleged to have accessed which detailed the date and time the documents were accessed. It was also agreed that Mr Cannon had a copy of the documents accessed. Mr Cannon also had a copy of the all the relevant policies.

The legislation

[14] Section 590(2)(c) of the Fair Work Act 2009 provides the Commission with the power to order the production of documents to the Commission. Section 603 gives the power to revoke any decision on application or by a person affected by the decision, subject to the limitations set out in section 603(3).

[15] The Full Bench in Clermont Coal Pty Ltd and ors v Brown and ors 1said:

“The test is whether the documents sought have an apparent relevance to the issues in the proceedings.  Since, in the exercise of its discretion concerning the issuing of orders to produce documents, the Commission will generally be guided by what applies in courts of law, the test of relevance applied by courts has usually also been applied by the Commission.” (references omitted) 2

[16] In Australian Nursing Federation v Victorian Hospitals’ Industrial Association Commissioner Jones set out in detail the approach of both the Commission and the courts to the production of documents. 3

[17] Of particular relevance is the statement of Greenwood J who said the subpoena “cannot be used for the purpose of ‘fishing’ or for the purpose of determining a preliminary question as to whether the party has a supportable case or to investigate the character of the opposing party’s evidence. 4

[18] I adopt the approached outlined in these decisions to the application to set aside the order. I note however that in this matter the order for the production of documents has been made prior to the parties filing their evidence and submissions so it is not clear, apart from what is set out in the application and the response what the matters in dispute are.

The order to produce

1. The complaints to Council referred to in para 1, page 1 of the letter from the Respondent’s Mr Paul Healy to the Applicant dated 3 August 2015.

[19] Mr Tallboys submitted that this document will be produced as part of the Council’s case and it was inappropriate that they be required to produce their evidentiary case prior to Mr Cannon filing his material in accordance with the direction. It submitted that the Council should be permitted to produce its evidence and then if there is any deficiency in the documents produced, Mr Cannon can apply for an order.

[20] Mr Gaffey submitted that the complaints were relied upon by the Council and they were directly relevant to the matters in dispute. They were referred to in the letter of suspension and the letter of dismissal. Mr Gaffey submitted that Mr Cannon needs the details of the complaints to assess the veracity of the Council’s claim and to show that it was based on a false premise. It was said he needs the documents to prepare his submissions and other elements of his case. He said they should have been provided at the time Mr Cannon was suspended. It was said it was only fair that they be produced.

[21] Mr Cannon has not as yet been provided with a copy of the complaints referred to in the letter of termination however he has been provided with the documents he accessed relevant to the complaints. It is not clear at this time whether Mr Cannon disputes that there were complaints or disputes that he was involved in a dispute with the person identified in the termination letter or disputes that he had any improper involvement with an alleged unapproved structure on her property.

[22] However I am unable to conclude the complaints do not have apparent relevance to the matter and I will require their production by 10.00 am on Friday 30 October 2015.

2. The recording of the segment(s) of the Respondent’s Councillors’ meeting on or about 24 February 2015 relating to “Staffing matter(s)” or “administrative matter(s)”.

[23] Mr Tallboys submitted that this recording could not be relevant to any matters to be determined by the Commission. It was submitted that Mr Cannon is fishing to see if he has a case.

[24] Mr Gaffey submitted that the recording is required to identify a significant element of bad faith or improper purpose on the part of the Council in taking action against Mr Cannon in August 2015. It was submitted that the document goes to the question of harshness, reasonableness and unfairness and is required for the preparation of Mr Cannon’s outline of submissions and his case.

[25] Mr Gaffey said that this was referenced in the application without pointing out where this was referenced. Mr Gaffey denied it was a fishing expedition. He also submitted that it would be relevant to the credit of the Council’s witnesses.

[26] Mr Gaffey submitted that it would be unfair to require him to go into further explanation in relation to the relevance of this as it would signal his case to the Council.

[27] I am unable to ascertain any allegation in Mr Cannon’s application of bad faith and I am unable to see any reference in the material before me to anything that occurred at the Council meeting on or about 24 February 2015 that is apparently relevant to the decision to terminate Mr Cannon’s employment in August 2015. I will set aside this order.

3. Emails in December 2014 between the Respondent’s Chief Executive Officer Mr Greg Burgoyne and Ms Janine Johnson from the Respondent’s Human Resources department, regarding Information Technology (IT) access recorded in the Dataworks system under the Applicant’s employee file.

[28] Mr Tallboys submitted that events in December 2014 have not been referred to in the proceedings and again Mr Cannon is fishing to see if he has a case.

[29] Mr Gaffey submitted that the documents go to the bona fides of the action of the Council against Mr Cannon in July and August 2015 and the veracity of its claimed reasons. Mr Gaffey submitted it was not fishing and that these documents would demonstrate material concerning the application and the staff members concerned and are required to enable him to make submissions to the Commission.

[30] I am unable to ascertain any apparent relevance of the documents sought. There is nothing in the material to suggest that the Council was aware in 2014 that Mr Cannon was inappropriately accessing documents and records. I will set aside this order.

4. Copies of staff timesheets submitted to the payroll unit showing the signoff of the General Manager of the Respondent’s Assets and Infrastructure (A and I) unit on hours worked by the Applicant during the period of his employment with the Respondent.

[31] Mr Tallboys submitted that the amount of time worked by Mr Cannon was not in issue. Further it cannot be said that the hours of work for the duration of Mr Cannon’s employment could be relevant.

[32] Mr Gaffey submitted that it was alleged that Mr Cannon misused Council resources improperly. These documents, it was said, would show that Mr Cannon worked over and above standard hours and was inadequately compensated for that work. There was an imbalance between the amount of unpaid time Mr Cannon willingly provided and the time he spent on what Mr Gaffey called the accessions. It was put that these documents would show that even if he did access material, it took a miniscule amount of time.

[33] There is reference in the letter of termination to Mr Cannon using work time to undertake activities in relation to his personal or private interests. If the Council relies on this to support a finding of a valid reason for the termination and if there is a dispute about the amount of time Mr Cannon, in work time, undertook activities in relation to his personal or private interests, then these documents would have apparent relevance. However at this time it is not clear that there is in fact a dispute about the amount of time. Further it is not clear how the records of hours worked for the entire period of his employment are relevant given it appears that the relevant time period is between 25 July 2014 and 31 July 2015. I will set aside this order.

5. Copies of records of all periods when the Applicant acted as the General Manager of the Respondent’s A and I unit.

[34] Mr Tallboys said that it is not relevant that Mr Cannon acted as General Manager. It was submitted that it would place an unnecessary burden on the Council if it was required to produce these records.

[35] Mr Gaffey submitted that these records would show that Mr Cannon is held in high regard within the Council and this is evidenced by the fact that he was regularly given higher duties as a matter of course.

[36] He accepted that this order may be too broad. Again Mr Gaffey suggested that the Council could produce a document which showed when Mr Cannon performed higher duties.

[37] There is no material before me to suggest that this is disputed. The letter of termination acknowledges that there have been no previous findings of misconduct. If Mr Cannon’s evidence about his standing in the Council is disputed, then these records may be relevant. However it is premature to seek the production of these records. I will set aside this order.

6. Copies of all the Applicant’s staff reviews.

[38] Mr Tallboys submitted that these documents were not relevant. There is no suggestion in the material to date that this case is about performance.

[39] Mr Gaffey submitted that these documents are required to demonstrate that there is no performance-based reason to terminate Mr Canon’s employment either at all or summarily and provide evidence of the harshness and unfairness of the suspension and termination.

[40] Mr Gaffey submitted that these are relevant.

[41] Obviously Mr Cannon’s employment records may be relevant to a finding that the dismissal was harsh and to any remedy sought. Again it is not clear that Mr Cannon’s performance is a matter in dispute between the parties and I consider it is premature to seek the production of these documents. I will set aside this order.

7. The lists prepared by the Respondent’s Ms Janine Johnson and provided to the Respondent’s Mr Paul Healy of outstanding staff reviews of A and I unit staff from 1 April to July 2015 (with names of A and I unit staff apart from the Applicant’s redacted).

[42] Mr Tallboys submitted that this information is kept in an excel spreadsheet which is regularly updated and Council would be required to interrogate its backup files to determine if such documents were still available in electronic form as well as check if they are available in hard copy. It was submitted that the documents are not relevant.

[43] It was said that on 28 July 2015 within 24 hours of his suspension Mr Cannon was required to backdate his performance review to March 2015. It was said that these documents would prove that the review was backdated. It was submitted that had there been any allegation of serious misconduct it would have been addressed in that performance review and there was none.

[44] It said that this goes to bad faith and the characterisation of his conduct as misconduct or serious misconduct or less than misconduct. He did not accept that it would be onerous to extract the information.

[45] It was said that the production of this document will prove the backdating of the review.

[46] It is not clear how this may be relevant to whether Mr Cannon did or did not access improperly Council files. It is also not clear from the submissions as to how this may be relevant to the characterisation of Mr Cannon’s conduct as misconduct or serious misconduct. Further it is not clear that this is in dispute between the parties. Mr Cannon can of course give this evidence and if it is contradicted by the Council Mr Cannon can seek production of the records. I will set aside this order.

8. The email which the Respondent’s Mr Paul Healy read from when suspending the Applicant from duty on 31 July 2015.

[47] Mr Tallboys accepted that Mr Healy had in his hand an email but denied that Mr Healy read from the email. Mr Tallboys said that the email was from the Council’s lawyers and the Council claimed legal professional privilege. He accepts that Mr Healy may have relied upon the content of the advice in the email to formulate his response to Mr Cannon but Council had not waived privilege.

[48] Mr Gaffey submitted that Mr Healy read the email to Mr Cannon and that privilege had been waived.

[49] Mr Gaffey submitted that the document needs to be produced as it sets out the grounds relied upon at the time to stand down Mr Cannon and it shows that the Council had prejudged the issue.

[50] He further submitted that even if it were privileged, if the Council had nothing to hide, it should be produced.

[51] I am not prepared to order the production of this document. There is insufficient direct evidence before the Commission to determine that privilege had been waived.

9. Documents which identify the specific accessions to the Respondent’s database which were subject of the Respondent’s allegation of “serious misconduct” against the Applicant.

[52] Mr Tallboys submitted that the Council was being required to produce the evidence it relied upon prior to the date on which it was directed to file its witness statements and submissions and documents. It submitted that Mr Cannon should be required to put his case and then the Council will put its case. If Mr Cannon, after reviewing the material, contends there are documents that should be produced he can file a further application.

[53] Mr Cannon said this material had been requested prior to the dismissal. It was submitted that the material goes to the question of whether Mr Cannon was provided with procedural or substantive fairness prior to the dismissal and whether there were reasonable grounds for the dismissal. It was put that Mr Cannon was not able to identify which one of the accessions were considered to be serious misconduct. The order requires the Council provide a document which sets this out. Mr Gaffey submitted that the Council should be required to put its case clearly.

[54] Mr Gaffey accepted that the request may be too broad.

[55] Mr Gaffey is not asking for a document to be produced but asking that the Council create a document. Council is not required in response to a notice to produce to create a document.

[56] Mr Gaffey then suggested that the Council provide a copy of those documents which it provided to Mr Cannon which it regards as evidencing serious misconduct. Mr Cannon has a copy of the documents it is alleged he accessed improperly. He is able to make submissions as to why accessing certain of those documents should not have led to his dismissal. I will set aside the order.

10. The documents showing the evidence on which the Respondent relied when making its finding of “serious misconduct” against the Applicant.

[57] Mr Tallboys relied upon the submissions it made in relation to order 9.

[58] Mr Gaffey submitted that the documents are required to test the veracity of the denials by the Council of Mr Cannon’s claim that the grounds to suspend and/or summarily dismiss him did not exist and also go to the question of procedural and substantive fairness. Mr Gaffey submitted that the Council referred in its letter of termination to have considered evidence that sustained the finding that there was serious misconduct. It was submitted that Mr Cannon is entitled to that evidence.

[59] The Council will be required to put evidence before the Commission to provide a basis for the Commission to make findings that the alleged conduct occurred. However directions have been issued from the Commission for the Council to file this material after Mr Cannon has put on his evidence. The notice to produce is an attempt by Mr Cannon to circumvent those directions.

[60] It was submitted that it would assist Mr Cannon to put his case if he had the material. He submitted that otherwise they would be going in with their hands tied behind their back.

[61] I do not accept that submission. Mr Cannon is aware of the documents he is alleged to have accessed and at what time this was said to have occurred. He will be able to give evidence about whether he accessed the documents. He will be able to give evidence as to whether he accessed those documents in the course of his employment. He will be able to give evidence about whether he consequently breached Council policy. If after the material is filed by the Council Mr Cannon is of the view that there are documents that may be relevant to any matter in dispute, he can make a further application for production. I will set aside this order.

11. The Respondent’s documents which were in existence as at 31 July 2015 and which contain evidence with reference to the relevant accessions referred to in the Respondent’s letters to the Applicant dated 3 and 11 August 2015 (the latter delivered late 12 August 2015) of:

11.1 the:

11.2.1 conflict between the Applicant’s duties and his personal interest,
11.2.2 whether the Applicant succumbed to that conflict and, if so
11.2.3 how he succumbed to it, and
11.2.4 whether anyone suffered loss or damage as a consequence of him
succumbing to it and

11.2 the personal advantage that the Applicant was alleged to have obtained

from the alleged accessions.

[62] Mr Tallboys relied upon the submissions it made in relation to order 9.

[63] It was said that these documents will enable to Mr Cannon to test the Council’s claim that there is a conflict of interest and gaining of advantage and go to the question of procedural and substantive fairness.

[64] Again this category requires the Council to create documents rather than produce documents already in existence. Further it is not clear at this time that there is any allegation that anyone suffered loss or damage or of any personal advantage that Mr Cannon obtained. I will set aside this order.

[65] Mr Gaffey submitted that a failure to issue the order to produce at this time may cause a delay in the proceeding because Mr Cannon will only have a short period of time between the receipt of the Council’s material and the hearing. Council is required to file its material by 23 November 2015 and the hearing is listed for 2-4 December depending on the number of witnesses. Mr Cannon will have over a week to review the material and if necessary seek a further order for production. The Council will then be required to produce that material at short notice. However, the Council is on notice of the matters raised by Mr Cannon and in those circumstances, provided the notice to produce sets out with the necessary particulars, the documents sought should not be an issue.

DEPUTY PRESIDENT

Appearances:

J. Gaffey for the Applicant.

B. Tallboys for the Respondent.

Hearing details:

2015.

Melbourne, by telephone link:

October 27.

 1   [2015] FWCFB 2460

 2   Ibid at [19]

 3   [2011] FWA 8756

 4 McIlwain v Ramsey Food Packaging and others, (2005) 221 ALR 785

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