Philip Leske v Department of Defence

[2010] FWA 3225

[2010] FWA 3225

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Philip Leske
v
Department of Defence
(U2010/5618)

COMMISSIONER DEEGAN CANBERRA, 20 APRIL 2010

Termination of Employment – order to produce

[1] This matter arises from an application for unfair dismissal remedy filed on 1 February pursuant to s.394 of the Fair Work Act 2009 (“the Act”) by Mr Philip Leske (“the applicant”) in relation to the termination of his employment by the Department of Defence (“the respondent”).

[2] On 18 March 2010, I signed an Order to produce documents, as provided by the applicant. The schedule in the Order encompassed the following documents:

SCHEDULE

1. The personnel file of Phillip Leske.

2. All documents recording or referring to the analysis of data contained on the H Drive relating to Mr Phillip Leske or otherwise in relation to his computer use and computer drives including but not limited to audit reports, lists of files and findings.

3. All documents recording or referring the work performance of Phillip Leske in 2008 and 2009 including but not limited to performance improvement plans, file notes, records of conversation and medical reports.

4. The following documents relating to any allegations of misconduct against employees within the Department of Defence relating to alleged misuse of the Defence Restricted Network including but not limited to breaches of Defence Instructions (General)- Admin 10-6- Use of Defence telephone and computer resources and the APS Code of Conduct in the period 1 January 2007 to 19 January 2010:

(a) Notification of a suspected breach of the APS Code of Conduct.

(b) Determination recording any finding with respect to suspected breach of the APS Code of Conduct;

(c) Determination recording the decision as to any sanction to be imposed with respect to suspected breach of the APS Code of Conduct.

5. All documents recording or referring to investigations and findings relating to the storage of non-work related material by Defence employees on the H Drive on the Defence Restricted Network or in Defence employee e-mail accounts for the period 1 January 2007 to 19 January 2010.

Document means:- all documentation including (but without limiting the generality) the following:- correspondence, emails, memorandums, letters, notes, meeting agendas, statements, reports, protocols, codes of conduct, guidelines, policy statements, meeting minutes, working papers, research, spread sheets, bank statements, payment advices, pay slips, records, reports, plans, diary entries, file notes, working notes, computer printouts and payment calculations.

[3] On 12 April 2010, the respondent filed an application to amend paragraphs 4 and 5 of the schedule. Documents in paragraphs 1 to 3 were produced by the respondent on 15 April 2010.

[4] On 19 April 2010, I heard the application to amend the Order to produce. Both parties were represented by counsel.

[5] Counsel for the applicant advised that, after discussions with the respondent, it was proposed to limit paragraphs 4 and 5 of the order to documents relating to employees within the Defence Materiel Organisation and to exclude the production of attachments to the documents set out in paragraph 4.

[6] The position of the respondent was that, despite the limitation proposed to the Order, the respondent maintained an objection to the production of the documents sought in paragraph 4 and 5 on the ground of relevance. However, in the event that an Order for production of the documents were to be made, the respondent sought an exemption for documents that referred to or commented on particular Defence operational matters together with a reduction of the relevant time period for the documents to the period 1 January 2009 to 19 January 2010.

[7] I am satisfied that I should make an Order for the production of the more limited range of documents now sought by the applicant. In this respect I am satisfied that the Order sought is neither a “fishing expedition” nor, as limited, oppressive. 1 I am also satisfied that the relevant time period for documents sought under the Order should be reduced, though not to the extent sought by the respondent. In my view documents of the type sought which relate to the period 1 July 2008 to 19 January 2010 should be sufficient for the purposes for which the applicant seeks the documents. Documents relatively contemporaneous with the time period under examination in this matter are more likely to have the type of relevance claimed by the applicant.

[8] While I am not prepared to exempt the documents of the type described in paragraph 2 (c) of the respondent’s solicitor’s letter of 19 April 2010, I am prepared to amend the Order to provide for the redaction of any part of any document relating to those matters.

[9] I will also amend the Order to provide that the documents should be produced by 3pm on Friday 23 April 2010.

[10] The amended Order for Production of Documents is attached.

COMMISSIONER

Appearances:

Mr Mark Gibian of counsel for the applicant.

Mr Adam Searle of counsel for the respondent.

Hearing details:

Canberra

19 April 2010

 1   Mandic v Phillis [2005] FCA 1279.

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