Sebastian Sajish Kanamkombil v St John of God Health Care Inc

[2017] FWC 4634

[2017] FWC 4634

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Sebastian Sajish Kanamkombil

v

St John of God Health Care Inc

(U2017/5341)

Deputy President Beaumont PERTH, 6 SEPTEMBER 2017

Application for an order pursuant to s.590(2)(a) requiring a person to attend before the Fair Work Commission Application for an unfair dismissal remedy.

1. This is an application by Mr Sebastian Sajish Kanamkombil (the Applicant) under s.590(2)(a) of the Fair Work Act 2009 (Cth) (the Act) for an order requiring a person to attend before the Fair Work Commission (the Application). The Application was made in the context of his substantive application for relief from unfair dismissal.

1. On 2 September 2017 the Applicant applied for orders requiring two individuals to attend the Commission for the purpose of giving evidence in the matter.

1. The Applicant, in his Application for the orders, says that one individual was involved in an investigation which resulted in him receiving a warning. The Respondent placed reliance on that warning when dismissing the Applicant. The same individual was later involved in an investigation which resulted in his dismissal.

1. The other individual, the Applicant submits, initiated false allegations to victimise him after he submitted a grievance about a recruitment process the individual had conducted. Furthermore, the individual chaired a meeting on 16 June 2016 and issued a letter on 27 June 2016 concerning his conduct in that meeting. The Applicant asserts the Respondent has falsely claimed this to be performance counselling.

1. The two individuals are currently employed by St John of God Health Care Inc (the Respondent). The Respondent objects to the orders to attend being issued on the grounds that the Respondent has relied upon the evidence put forward by the Human Resources Manager, is not quite sure what further information the individuals can add, and the individual involved in the investigation that resulted in the Applicant’s dismissal had a limited role.

1. I have considered the material and submissions made by Mr Sajish Kanamkombil for the Applicant and Ms Clare Francis for the Respondent. I have decided to issue the orders sought for one of the individuals to attend the Commission and have declined to issue the order for the other.

1. I am not convinced that the individual alleged to have made false allegations can provide evidence on the matters I must decide in the substantive Application (that is, whether the dismissal was unfair). Any relevant connection between the matters to be decided and the individual’s involvement in the 16 June 2016 meeting and subsequent letter that was issued on 27 June 2016 has not been established.

1. Both the meeting and letter were said to have informed the Applicant of behavioural expectations and that his conduct was considered inappropriate. While drawing the Applicant’s attention to his conduct and its expectations the Respondent did not investigate the matter further or embark on a disciplinary or performance management process. Therefore, I decline to issue the order directed to Ms Sarah Crawford.

1. With regard to the other individual, Ms Evelyn Quinn (Ms Quinn), I am of the view that she is able to provide evidence on the matters I must decide in the substantive application. I accept Ms Quinn’s role may have been limited in the investigation leading up to the Applicant’s dismissal. However, Ms Quinn interviewed some of the witnesses and is said to have taken handwritten notes of responses to purported questions. For this reason I have decided to issue the order to attend directed to Ms Quinn.

DEPUTY PRESIDENT

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