Ramos v Good Samaritan Industries
[2011] FMCA 108
•25 February 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| RAMOS v GOOD SAMARITAN INDUSTRIES | [2011] FMCA 108 |
| PRACTICE AND PROCEDURE – Objection to subpoena – whether subpoena was oppressive and whether documents sought relevant to any issue in dispute considered. |
| Federal Magistrates Act 1999, s.50 Fair Work Act 2009 (Cth), s.342 |
| Australian Competition and Consumer Commission v Shell Co of Australia Ltd (1999) 161 ALR 686 Plastec Australia Pty Ltd v Plumbing Solutions and Services Pty Ltd (No.2) [2010] FCA 670 Tamawood Ltd v Habitare Developments Pty Ltd [2009] FCA 364 |
| Applicant: | AGUSTIN RAMOS |
| Respondent: | GOOD SAMARITAN INDUSTRIES |
| File Number: | PEG 178 of 2010 |
| Judgment of: | Driver FM |
| Hearing date: | 24 February 2011 |
| Delivered at: | Sydney |
| Delivered on: | 25 February 2011 |
REPRESENTATION
The Applicant appeared in person
| Counsel for the Respondent: | Mr Kemp |
| Solicitors for the Respondent: | Jackson McDonald Lawyers |
INTERLOCUTORY ORDERS
The respondent is to produce within 14 days the documents sought in paragraphs 4 and 5 of the schedule to the subpoena issued on 21 October 2010, with all information identifying employees other than Mr Ramos redacted from the documents.
Upon production, Mr Ramos has leave to inspect and copy the documents produced.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
PEG 178 of 2010
| AGUSTIN RAMOS |
Applicant
And
| GOOD SAMARITAN INDUSTRIES |
Respondent
REASONS FOR JUDGMENT
Introduction and background
On 9 November 2010 the respondent, Good Samaritan Industries (GSI) filed a Notice of Objection to a Subpoena to Produce Documents issued on 21 October 2010. GSI objects to the production of documents listed in paragraphs 4 and 5 of the schedule to the subpoena which seek:
Copies to be provided to the Applicant of all the Staff Time Sheets for the Dianella Store for the period commencing the 22 June 2009 and ending on the 22 July 2010.
Copies to be provided to the Applicant of all the registers of “Time Of[f] In Lieu” for the period commencing the 22 June 2009 and ending the 22 July 2010.
The objection is based on the following grounds:
(a) the request is oppressive as the documents are not relevant to the proceedings; and
(b)the documents contain personal information in relation to the Respondent’s employees and such information is not relevant to the proceedings.
The Notice of Objection also states that:
a)GSI would consent to the production of the documents listed in paragraph 4 of the schedule to the subpoena if the description of the documents is amended to:
Copies of staff time sheets for the Respondent’s Dianella Store for the period 22 June 2009 to 22 July 2010 with all information relating to all employees, other than the Applicant, redacted from the documents.
GSI also states in answer to the subpoena that there is no “time off in lieu register” for Mr Ramos or the Dianella store where he worked for the specified period. I understand that such registers do exist for other GSI stores.
The evidence and submissions
For the purposes of the objection to the subpoena, I have had regard to Mr Ramos’ Points of Claim filed on 15 November 2010, the affidavits of John Mark Knowles and Sou Lin Tan, both made on 24 November 2010 and the affidavit of Mr Ramos made on 27 November 2010. I have also had regard to the submissions of the parties in relation to the subpoena.
Reasoning
A subpoena should be set aside if:
a)it is unreasonably wide or used as a fishing expedition (Tamawood Ltd v Habitare Developments Pty Ltd [2009] FCA 364);
b)it is used as a substitute for discovery (Australian Competition and Consumer Commission v Shell Co of Australia Ltd (1999) 161 ALR 686); and/or
c)the documents sought do not have an apparent relevance to the issues in the principal proceeding (Plastec Australia Pty Ltd v Plumbing Solutions and Services Pty Ltd (No 2) [2010] FCA 670).
GSI understands that the documents sought by the subpoena relate to the allegations made in subparagraph (a) of the particulars to paragraph 6 of the Points of Claim which states:
The Applicant claims that in a letter from the Respondent dated 23 April 2010 the Respondent took adverse action against the Applicant, in breach of section 342 subsection (1), subsection (2) and section 340 of the [Fair Work] Act.
Particulars
a) The Respondent threatened the Applicant with disciplinary action without any or any sufficient reason.
b) The Respondent discriminated against the Applicant by choosing to side with the other employees Gordon and Cameron instead of the Applicant without any or any sufficient evidence or reason.
Mr Ramos in his affidavit at [4] alleges that he was threatened in relation to the GSI time off in lieu (TOIL) policy. Annexure A11 to that affidavit is a letter from GSI to Mr Ramos dated 23 April 2010. At page 4 of that letter Mr Ramos was instructed to adhere to an identified TOIL policy, including in relation to the working of additional hours.
GSI contends that the only issue raised on the pleadings and evidence is whether the alleged threat constituted “adverse action” as defined in s.342 of the Fair Work Act 2009 (Cth) and that the relevant issue is whether approval of a relevant manager was necessary and, if so, whether GSI had, by prior conduct, waived the obligation. GSI contends that the documents sought in paragraphs 4 and 5 of the subpoena have no relevance to that issue as they simply record hours worked and time off taken, not the process by which any approval might have been sought or given.
Mr Ramos contends that:
The documents listed at paragraph 4 and 5 of the schedule to the Subpoena served upon John Knowles, the Chief Executive Officer of the Respondent are definitely most relevant to these proceedings and contain important evidence that would assist in supporting the Applicant’s claim of adverse action against the Respondent and which would show that:
a) the Time Off In Lieu (“TOIL”) previously claimed by the Applicant and the Staff from the Dianella Store for the period 22 June 2009 to 22 July 2010 was compensated by the Respondent and therefore authorised by the relevant manager.
b) [T]he Respondent’s claim that the TOIL Policy was required to be followed by the Applicant and the Dianella Store Staff in order for Time Of[f] in Lieu (“TOIL”) to be authorised by the relevant manager, is incorrect.
c) [T]he Respondent’s claim stated in paragraph 19 of the Affidavit of John Knowles that “the Applicant was not threatened with disciplinary action in relation to the Time Off in Lieu Policy”, is incorrect.
d) [T]he Respondent’s claim stated in paragraph 16 of the Affidavit of John Knowles that “the Applicant did not specify the leave type of the two days off”, is incorrect.
e) The Respondent’s claim stated in paragraph 16 of the Affidavit of Sou Lin Tan that “the Time Sheets do not show an employee’s entitlement to TOIL”, is incorrect.
f) [T]he Respondent’s claim stated in paragraph 18 of the Affidavit of Sou Lin Tan that “during the period of the Applicant’s employment, no employees at the Dianella Store accrued any entitlement to TOIL”, is incorrect.
g) [T]he Dianella Store Time Sheets were the sole record of Time Off In Lieu that the Applicant had been instructed to comply with by the Respondent and that there was never any other requirement in practice during the Applicant’s employment with the Respondent.
h) [T]he Respondent did not follow its own written TOIL Policy and that therefore it was discriminatory for the Respondent to threaten to discipline the Applicant for not following the written TOIL Policy. This action taken by the Respondent constitutes adverse action as defined in section 340 and 342 of the Fair Work Act 2009.
I take into account that the Federal Magistrates Court is not generally a court of pleadings[1] and that a reasonably liberal attitude should be taken to the wording of such pleadings as are relied upon, particularly where the relevant party is not legally represented. Mr Ramos is not legally represented in these proceedings. Mr Ramos believes that he has been treated adversely as a result of making a complaint and that the documents sought will in some way support that claim. In my view, the documents might hypothetically support that assertion if, for example, there appeared to be a change of policy or approach for a period after Mr Ramos made a complaint or if it appeared that other employees were treated more generously or more flexibly than he was, particularly after he made a complaint. It is also hypothetically possible that the documents sought might be used by Mr Ramos to test the credibility of the evidence of Sou Lin Tan and John Mark Knowles in relation to the TOIL policy and the application of it in his case. It is my understanding that such documents as exist which are caught by the terms of the subpoena are readily available and it would not be unduly burdensome for GSI to produce them. The confidentiality of employees other than Mr Ramos can be protected by redacting the documents to remove identifying particulars such as name and address.
[1] See s.50 of the Federal Magistrates Act 1999 (Cth)
I will order that GSI produce within 14 days the documents sought in paragraphs 4 and 5 of the schedule to the subpoena with all information identifying employees other than Mr Ramos redacted from the documents.
I will direct that upon production, Mr Ramos has leave to inspect and copy the documents produced.
In accordance with ordinary principles, Mr Ramos will be subject to an implied undertaking not to use the documents produced pursuant to the subpoena for any purpose unrelated to these proceedings.
I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Driver FM
Date: 25 February 2011
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