Pece Calovski v Opal Packaging Australia Pty Ltd
[2024] FWC 68
•11 JANUARY 2024
| [2024] FWC 68 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Pece Calovski
v
Opal Packaging Australia Pty Ltd
(U2023/10560)
| COMMISSIONER MATHESON | SYDNEY, 11 JANUARY 2024 |
Application for an order pursuant to s.590(2)(a) requiring a person attend before the Fair Work Commission – application for an order pursuant to s.590(2)(c) requiring a person to provide copies of documents or records or provide any other information to the Fair Work Commission – application for unfair dismissal remedy
Mr Pece Calovski has applied to the Fair Work Commission (Commission) alleging that he has been unfairly dismissed and seeking a remedy. Opal Packaging Australia Pty Ltd (Respondent) is the respondent in the proceedings.
Order to attend
The Respondent has applied under s.590(2)(a) of the Fair Work Act 2009 (Cth) (Act) for an order requiring a person to attend before the Commission. The persons that the Respondent seeks the attendance of are Emma Afeaki and Corey Myers of SafeWork NSW.
In making its application the Respondent submitted, by way of summary:
The substantive matter involves the Applicant crashing a forklift in the Respondent’s factory.
The Applicant claimed the forklift’s brakes failed.
The Respondent did not accept the Applicant’s explanation and dismissed the Applicant on 19 October 2023.
The Respondent’s investigation involved:
a.an internal ICAM (Safety) investigation;
b.an inspection of the forklift’s brakes by the company that maintains forklifts on the site; and
c.an inspection and investigation by SafeWork NSW.
The Applicant calls into question the ‘independence’ of the SafeWork NSW report which the Respondent considered as a part of its investigation with the Applicant stating in his Form F2:
“In your letter dated 11th October 2023 it states the following “based on the information available to the company, including the reports by Safework (sic) and Adaptalift, the company does not accept your explanation for the incident”. Firstly, Safework (sic) report is driven by the Adaptalift report, there is no evidence of Safework (sic) having an independent separate report to the Adaptalift (sic). If there is such separate report, this has not been provided to me. Secondly, its (sic) concerning that both Safework (sic) and Opal has (sic) relied on a post-incident inspection and subsequently a report from Adaptalift, which services and maintains the forklifts. The report is not independent, and therefore is deemed impartial (sic).”
Given the Applicant’s contentions as to the independence of the SafeWork NSW Report, the Respondent requires the SafeWork NSW inspectors who inspected the Company’s site and prepared the Report to provide evidence as to the independence or otherwise of the Report.
It expects that the nature of the evidence to be adduced from Ms Afeaki and Mr Myers will relate to the SafeWork NSW site inspection on 18 July 2023 and SafeWork NSW Report dated 26 July 2023.
The Applicant is alleging that his dismissal was unfair for reasons that include absence of a valid reason for dismissal.
Adducing evidence from Ms Afeaki and Mr Myers who inspected the Respondent’s site and prepared the SafeWork NSW Report could assist the Commission in making findings as to whether there is merit to the Applicant’s allegations relating to the alleged deficiencies in the SafeWork NSW Report upon which the Respondent relied, which is relevant to the question of valid reason.
10.The attendance of Ms Afeaki and Mr Myers will assist the Commission toward the proper determination of the issues in the proceedings by the furnishing of material for the information and guidance of the Commission and evidence relevant to the facts in issue.
The Applicant submitted that the Respondent contends that evidence from SafeWork NSW ‘could’ assist the Commission in making findings and that this is not the test – there must be a positive finding that the attendance ‘will’ assist, not some speculative determination. In this regard the Applicant points to paragraph 4 in section 1.3 of the Form F51 which states:
“Adducing evidence from the relevant SafeWork NSW inspectors who inspected the
Company’s site and prepared the Report could assist the Commission in making findings as to whether there is merit to Mr Calovski’s allegations relating to the alleged deficiencies with the SafeWork NSW Report upon which the Company relied, which in turn goes to the question of valid reason.” (emphasis added)
In this regard the Applicant relied on Kennedy in which the Full Bench of the Commission said:
“In deciding whether or not to issue an order to attend under s.590(2)(a) of the Act, the Commission will consider whether attendance at the hearing by the person to whom the order will apply will assist in the resolution of the matter before it.”[1]
The Applicant submitted:
The independence of Adapt-A-Lift was questioned by the Applicant, not SafeWork NSW. The Applicant does not intend to advance submissions that SafeWork NSW’s inspectors or their report lacked independence;
Whilst issues of impartiality could feasibly arise in relation to Adapt-A-Lift:
a.it is premature to make any such suppositions at this stage; and
b.even if the Applicant were to contend that Adapt-A-Lift was not independent, the Commission has issued directions for Adapt-A-Lift witnesses to give evidence which can be tested at the hearing;
The key issues in the proceedings are whether the brakes on the forklift malfunctioned and whether the Applicant was driving in an unsafe manner and the SafeWork NSW inspectors cannot shed any further light on these issues – they rely on the report of Adapt-A-Lift and cannot assist;
The Commission is best placed to resolve the factual issues in dispute without the need to hear from superfluous witnesses;
The introduction of evidence that is irrelevant to proceedings is contrary to the Commission’s duty to perform its functions in a way that is quick, informal, and avoiding unnecessary technicalities and the orders would have the effect of introducing two more witnesses, despite there likely already being more than 10 witnesses.
The Respondent responded to the Applicant’s submissions, submitting:
There is some question as to whether the Applicant has the right to object to the Respondent seeking to summons witnesses as, subject to the general obligations of case management, a party is normally entitled to call whatever witnesses it wishes, whether on a voluntary or coercive basis. It is the witness who has the right to object.
In Kennedy[2]:
a.the applicant sought to summons a witness in circumstances where the witness objected to the summons and advised that given he was attending in any event, the summons was unnecessary;[3]and
b.it appears that the evidence of Ms Kernan was to the same point and was therefore unnecessary.[4]
The above circumstances in Kennedy are a very long way from the current matter.
The Respondent will be submitting that the Applicant’s actions were manifestly dangerous and gave rise to an investigation by SafeWork with potentially serious consequences for the Respondent and that submission is directly relevant to the existence of a valid reason. The Respondent submitted that the evidence that will ground that submission will be given by the SafeWork NSW inspectors.
The evidence of the inspectors is directly relevant to an issue in the proceedings, they do not object and there is no discretionary reason as to why they should not be subject to the summons.
I have considered the submissions of the parties and materials currently before the Commission. The Applicant filed a number of attachments to his Form F2 application. One of these was a letter from the Respondent to the Applicant dated 3 October 2023. This letter states:
“…we have now received the reports from Adapt-A-Lift and Safework regarding the safety incident that occurred on the 27th of June 2023. Those reports confirm that there was no fault in the braking system on the grab forklift…”
The letter sets out allegations that the Applicant ‘failed to operate the “grab forklift” in a safe manner’ and that the Applicant has ‘not been willing to accept any responsibility for the incident despite being given the opportunity to do so.’
Attached to the Applicant’s Form F2 is his response dated 9 October in which he states:
“Before I answer any of the allegations I wish to state my deep concerns about the Safework NSW report which was commissioned from the company that maintains and services the grab forklift. Therefore this is not an independent report.”
Attached to the Applicant’s Form F2 is a further letter from the Respondent to the Applicant dated 11 October 2023 which sets out investigation outcome and states:
“The Company considered your explanation that the grab forklift brakes were faulty. However, based on the information available to the Company, including the reports by SafeWork NSW and Adapt-a-Lift, the Company does not accept your explanation for the incident.”
Attached to the Applicant’s Form F2 is a further response of the Applicant in which the Applicant states:
“In your letter dated 11th of October 2023 it states the following “based on the information available to the company, including reports by Safework and Adaptalift, the company does not accept your explanation for the incident.”
Firstly, Safework report is driven by Adaptalift report, there is no evidence of Safework having an independent separate report to the Adaptalift. If there is such separate report, this has not been provided to me.
Secondly, its concerning that both Safework and Opal has relied on a post-incident inspection and subsequently a report from Adaptalift, which services and maintains the forklifts. The report is not independent, and therefore is deemed impartial.”
Attached to the Applicant’s Form F2 is a letter from the Respondent to the Applicant which states:
“Opal did not accept your explanation for the incident, that you did apply the brake, because it was inconsistent with:
·SafeWork NSW’s response to the incident, which was to advise Opal via an email dated 19 July 2023 from Emma Afeaki, SafeWork NSW Inspector, copied to Adam Williams (SafeWork email):
The decision has been made that as the forklift operator Mr Pece Calovski has already been suspended from using the forklift at the workplace since the incident that SafeWork NSW will allow the PCBU to continue to manage the incident and not us our powers under Clause 110 of the WHS Act 2011 [noting that the reference to “clause 110 of the WHS Act 2011” should have been a reference to regulation 110 of the Work Health and Safety Regulations 2011 (NSW)].
It is an expectation that the PCBU will ensure that Mr Calovski is able to operate high risk work competently and safety prior to being allowed to use forklifts in the premises; and
·the report provided to SafeWork NSW by Adapt-a-Lift on 25 July 2023 in response to a Notice to Give Information to SafeWork NSW (Notice) issued to Adapt-a-Lift pursuant to section 155(2) of the Work Health and Safety Act NSW (2011) 20 July 2023, which confirms the forklift brakes were in working order.
To clarify, what we have referred to as “reports by SafeWork NSW and Adapt-a-Lift” in my letters to you dated 3 October 2023 and 11 October 2023 comprises:
·the SafeWork e-mail;
·the Notice; and
·the Inspection Report issued by SafeWork NSW on 26 July 2023 in relation to the incident, which was copied to Adam Williams and Ahmet Sayan on the 31st July 2023.”
It is apparent from the Applicant’s submissions that the Applicant is seeking to rely upon the above in addressing whether there is a valid reason for the dismissal and, while the Applicant has clarified that he does not question the independence of the SafeWork NSW inspectors, it is apparent to me from the materials before the Commission that the Applicant has taken issue with the Respondent’s reliance on the SafeWork NSW statements as a basis for dismissal, including because he suggests there has been reliance on a report from Adapt-A-Lift which services and maintains the forklift involved in the incident relevant to these proceedings. I am of the view that Emma Afeaki and Corey Myers of SafeWork NSW having inspected the site and made findings and will be able to provide evidence on the matters I must decide in the substantive application. Having considered the submissions of the parties and materials before the Commission I am satisfied that attendance at the hearing by the persons to whom the orders will apply, being Emma Afeaki and Corey Myers of SafeWork NSW, will assist in the resolution of the matter. I contacted Emma Afeaki and Corey Myers to make them aware that I was considering the orders who confirmed they did not have any objections or concerns to the orders being sought. I have therefore decided to issue the orders to attend directed to Emma Afeaki and Corey Myers.
Order to produce
The Respondent also made an application for an order under s.590(2)(c) of the Act requiring a person to produce documents, records or other information to the Commission.
The Respondent initially sought:
copies of all bank records held in the Applicant’s name (whether solely or jointly with another person or persons) for the period 19 October 2023 until the date of the Order made by the Commission;
copies of all job applications tendered by the Applicant for the period 19 October 2023
until the date of the Order made by the Commission;
copies of all documents relating to any job interviews attended by the Applicant in the
period 19 October 2023 until the date the Order is made by the Commission, including any correspondence received from prospective employers;
copies of any contracts of employment, letters of offer or other offers of employment, terms of engagement or related documents issued to the Applicant in connection with any employment (prospective or otherwise) for the period 19 October 2023 until the date the Order is made by the Commission; and
copies of any pay slips for work performed by the Applicant for the period 19 October
2023 until the date the Order is made by the Commission, with
“pay slips” having the meaning ascribed in the Act and Fair Work Regulations 2009 (Cth) and
“document” meaning any record of information, including:
(a)anything on which there is writing, or
(b)anything on which there are marks, figures, symbols or perforations having a meaning for persons qualified to interpret them, or
(c)anything from which sounds, images or writings can be reproduced with or without the aid of anything else, or
(d)a map, plan, drawing or photograph.
In its Form F52 application the Respondent submitted, by way of summary:
The documents are relevant to the issues in litigation between the parties and will ‘permit the Commission the proper determination of the issues in the proceedings’.
The documents are relevant to the question of remedy in circumstances where the Commission determines compensation is an appropriate outcome, noting that s.392 of the Act requires the Commission to have regard to, among other things efforts to mitigate loss suffered because of the dismissal (s.392(2)(d)) and the amount of any remuneration earned from employment or other work during the period between the dismissal and the making of the order for compensation (s.392(2)(e)).
The Applicant submitted that his materials filed in accordance with the directions will demonstrate that he made numerous job applications and recently obtained employment as of 18 December 2023 and that this addresses categories 2 and 4 of the orders sought.
The Applicant submitted that, with respect to category 1, documents must not be sought to explore if there is a supportable basis for a case that might potentially be advanced and category 1 can only be categorised as a ‘fishing expedition’. The Applicant submitted that seeking the production of bank records (particularly if unredacted) is too broad, overly onerous and devoid of relevance.
The Applicant submitted that, with respect to categories 3 and 5, the Applicant does not possess any documents relating to job interviews and has not received any payslips, noting the recent commencement of his employment and that any payslips will be annexed to the Applicant’s evidence in reply.
In Response the Respondent indicated that given the Applicant had obtained other employment, it does not press categories 2 and 3. It did however submit that categories 4 and 5 are directly relevant to the question of mitigation and the documents sought go to payments to the applicant since his dismissal and are directly relevant to any Spriggs assessment and the question of reinstatement.
In relation to the issue of relevance a Full Bench of the Commission said in Clermont Coal:
“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”. [5]
A Full Bench of the Commission went further in summarising the principles applying to the issue of orders for production by the Commission under s.590(2)(c) in Esso where it said:
“It is sufficient to observe that the power under s.590(2)(c) to require a person to provide copies of documents or records, or to produce any other information to the Commission is a discretionary power, the exercise of which is to be guided by the principles adopted by courts in civil proceedings when compelling a person to produce documents, records or other things. Matters that will guide the exercise of the discretion to require production include relevance, the particularity with which the documents or category of documents that are to be the subject of the order sought are described, the extent to which the burden placed on a person required to comply with the order is reasonable, the extent to which particular documents sought amount to no more than fishing, and the proper administration of justice in the sense that material that is relevant to an issue or issues that fall for determination is available to parties to enable the parties to advance their respective cases.”[6]
The decision to make or not make an order is discretionary. In D.A. v Baptist Care[7], the discretion was described as one that will generally be exercised in favour of the applicant for an order unless it would be “vexatious or frivolous or otherwise an abuse of process to issue the summons.”
In D.A. v Baptist Care, the Deputy President helpfully set out a non-exhaustive list of considerations relevant to the exercise of the discretion, including:
“Apparent (not necessarily direct) relevance to the issues in dispute;
Whether a sound forensic basis for seeking the material has been provided or whether the orders represent a fishing expedition;
Whether the documents are being sought for a collateral or improper purpose;
Whether questions of legal professional privilege or confidentiality arise;
The implications for the party concerned including the cost, inconvenience and delay associated with compliance;
Whether compliance would reveal internal deliberations as to industrial strategy or policy; and
The potential impact of production upon any contentions to be determined in the matter.”[8]
The Applicant’s bank records may show payments indicating remuneration earned from employment or other work since the Applicant’s dismissal and are of apparent relevance in this regard. However, I accept the Applicant’s submission that category 1 of the order proposed is too broad and I consider that it would also capture transactions that would not have apparent relevance in the proceedings. In relation to category 1 of the order proposed by the Respondent a narrower and less onerous order to produce documents will be issued, in the following terms:
Copies of all bank statements for accounts held in the Applicant’s name (whether solely or jointly with another person or persons) for the period 19 October 2023 until the date of the Order made by the Commission showing payments in respect of any remuneration earned by the Applicant from employment or other work during the period between the dismissal and the date of the Order. Other information appearing in those bank statements may be redacted.
The documents sought in categories 4 and 5 capture information of apparent relevance to the question of remedy, although I will vary the proposed wording of the order noting that the definition of document proposed by the Respondent together with the proposed requirement for the Applicant to produce ‘related documents issued to the Applicant in connection with any employment (prospective or otherwise)’ is overly broad and would likely capture information that is not of relevance to the proceedings. In relation to categories 4 and 5 of the order proposed by the Respondent a narrower and less onerous order to produce documents will be issued, in the following terms:
Copies of any contracts of employment, letters of offer or other offers of employment, terms of engagement (however described) issued to the Applicant in connection with any employment (prospective or otherwise) for the period 19 October 2023 until the date the Order is made by the Commission.
Copies of any pay slips for work performed by the Applicant for the period 19 October
2023 until the date the Order is made by the Commission, with “pay slips” having the meaning ascribed in the Fair Work Act 2009 (Cth) and Fair Work Regulations 2009 (Cth).
The Order issued in conjunction with this decision will require compliance by 4:00pm on Tuesday, 16 January 2024.
COMMISSIONER
[1] Kennedy v Qantas Ground Services Pty Ltd t/a Qantas Ground Services Pty Ltd, Qantas Group [2018] FWCFB
3847, [46].
[2] Kennedy v Qantas Ground Services Pty Ltd t/a Qantas Ground Services Pty Ltd, Qantas Group [2018] FWCFB
3847.
[3] Kennedy v Qantas Ground Services Pty Ltd t/a Qantas Ground Services Pty Ltd, Qantas Group [2018] FWCFB
3847, [50].
[4] Kennedy v Qantas Ground Services Pty Ltd t/a Qantas Ground Services Pty Ltd, Qantas Group [2018] FWCFB
3847, [51].
[5]Clermont Coal Pty Ltd; Clermont Coal Operations Pty Ltd; Collinsville Coal Operations Pty Ltd; and Glencore Coal Queensland Pty Ltd v Troy Brown; Campbell Dews; Damien Mason; Gregory Holmes; Jeffrey Mason; and Glynis Sabbo [2015] FWCFB 2460.
[6] Esso Australia Pty Ltd v AWU, AMWU and CEPU[2017] FWCFB 2200 at [6].
[7] D.A. v Baptist Care SA [2019] FWC 7358 at [36].
[8] D.A. v Baptist Care SA [2019] FWC 7358 at [37].
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