Sebastian Sajish Kanamkombil v St John of God Health Care Inc

[2017] FWC 4523

[2017] FWC 4523

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, 1 SEPTEMBER 2017

Application for an order pursuant to s.590(2)(c) for production of documents etc; application granted in part.

[1] This is an application by Mr Sebastian Sajish Kanamkombil (the Applicant) under s.590(2)(c) of the Fair Work Act 2009 (Cth) (the Act) for an order for the provision of documents, records or any other information to the Fair Work Commission (the Application).

[2] The Applicant applied for the order on 15 August 2017 in the context of his substantive application for relief from unfair dismissal. St John of God Health Care Inc. (the Respondent) dismissed the Applicant on 28 April 2017 for misconduct.

INTRODUCTION

[3] An order was made in part on 21 August 2017 (Order) pursuant to s.590(2)(c) of the Act. The Order required the production of “documents, records and other information” specified in the “Schedule to the Order” by 10:00am on 28 August 2017. The documents specified in the Schedule to the Order were:

• CCTV footage of the alleged incident between the Applicant and the Clinical Nurse/Coordinator in the corridor outside of the anaesthetic workroom on 3 February 2017 between 16:00hrs and 16:30hrs.



• CCTV footage of the alleged incident concerning an interaction between the Applicant and the Acting Manager Perioperative Services at the entrance of anaesthetic work room on 15 February 2017 at approximately 10:30hrs.



• Documents recording a discussion, or discussions, with the Applicant concerning “performance counselling/expectation issues” as referred to in the letter of termination of 28 April 2017.

[4] Given the Order was only made in part the Applicant was informed that he could be heard on those documents omitted from the Order. On 21 August 2017 the Applicant requested to be heard and the matter was listed for a hearing by telephone on 28 August 2017.

[5] The various categories of documents, records and information which fell among the omitted documents are extracted from the Application’s schedule of 15 August 2017:

• My hospital email communications, from email id [email protected].



• CCTV footage from the camera located outside station street staff common room, the camera looking towards theatre pharmacy room and main entrance door. Date - 3^rd February 2017, Time frame 16.15 – 17.15 hrs.



• Computer record of the operating list from theatre 2 for 3^rd February 2017, Operating List under Mr. Gabriel Lee and Anaesthetist Dr. Marcus Schmidt, times showing from anaesthetic commenced to surgical start time. The page showing staff present in the theatre and anaesthetic times.



• Witness statements for the alleged conduct and behavior during the meeting on 28^th July 2016 (meeting between me, Evita Ferguson, Evelyn Quinn and ANF Rep-Rouxlien Weiderman) and



• statements for the alleged conduct and behavior during the meeting on 16^th June 2016 (meeting between me, Evita Ferguson, Sarah Crawford and ANF Rep- Monique Taffe).



• Investigation report and witness statements of the allegations dated 30^th June 2016, which resulted in formal warning being issued to me.

[6] As the parties were self-represented they were informed of the pertinent provisions of the Act and the principles relevant to the exercise of discretion to order a person to provide documents, records or any other information to the Fair Work Commission (Commission).

THE ACT

[7] The jurisdiction of the Commission to make such an order arises from s.590 of the Act, and in particular s.590(2)(c). The Act states:

“Powers of FWC to inform itself

…..

(2) Without limiting subsection (1), FWA may inform itself in the following ways:

…..

(c) by requiring a person to provide copies of documents or records, or to provide any other information to the FWC.”

RELEVANT PRINCIPLES

[8] The principles for determining whether and if so what form of order to produce should be made were summarised in Australian Nursing Federation v Victorian Hospitals’ Industrial Association (ANF) 1 and adopted by the Full Bench in Esso Australia Pty Ltd v Australian Workers’ Union (AWU), Australian Manufacturing Workers’ Union (AMWU) and Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) (Esso).2

[9] In Esso, the Full Bench stated:

“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”. 3

[10] His Honour Vice President Lawler in Association of Professional Engineers, Scientists and Managers and Airly Coal Pty 4sets out a detailed exposition of the principles for determining whether to order a person to provide documents with a particular focus on issues of confidentiality. In that decision his Honour referred to the decisions in: (a) in Re Clerks’;5 (b) Appache Northwest Pty Ltd v Western Power Corporation6 and the authorities referred to in that decision;7 and (c) Santos Ltd v Pipelines Authority (SA) (No 2). 8

[11] The issue of confidentiality has also been dealt with in some detail by the then Commissioner Bull in Coates Hire Operations Pty Ltd v AMWU, CEPU and TWU. 9 He likewise cited the authorities referred to by his Honour Vice President Lawler.

[12] In arriving at the decision I have had regard to Esso, ANF and the authorities referred to in it, and the decisions relating to confidentiality. In addition, I have considered the decision in Application by Vickers 10 where the Full Bench was guided by whether there was any realistic possibility that the party had any documents to produce if the ordered was made as proposed.

SUBSTANTIVE PROCEEDINGS

[13] The determination of whether orders should be made under s.590(2)(c) of the Act in the terms sought by the Applicant requires an application of relevant legal principles in the context of issues which may arise in the substantive proceedings. This is, by necessity, informed by the Applicant’s application for relief from unfair dismissal.

[14] The Applicant claims he has been unfairly dismissed and is protected from unfair dismissal (s.385 of the Act). When determining whether the Applicant’s dismissal was unfair, consideration must be had to whether the dismissal was harsh, unjust or unreasonable (s.385(b) of the Act and s.387 of the Act). The Respondent is not a Small Business, a genuine redundancy has not been asserted and there is no other objection to jurisdiction.

[15] Having regard to all that has been put before me, in the exercise of my discretion, and in balancing the competing interests, I have decided not to issue an order to produce those documents, records or any other information omitted from the Order.

CONSIDERATION

Paragraph one of the Schedule - email communications

[16] The Applicant submitted that the email communications included his complaints to the Chief Executive Officer, Director of Nursing, the Deputy Director of Nursing and the Human Resources Manager about several staff asserted to have been implicated in his dismissal. As such they were relevant and would show he had been denied procedural fairness regarding his dismissal.

[17] The Respondent objected to the proposed order on the basis that it lacked sufficient particularity, would amount to no more than fishing and the email communications were unable to be produced. Ms Francis for the Respondent gave evidence that all emails from the Applicant had been deleted as was the usual course when an employee ceased to be employed by the Respondent.

[18] I accept the evidence of Ms Francis and am not satisfied that there is any realistic possibility that the Respondent has any documents to produce if I were to issue the proposed order. If minded to issue the proposed order it would in any event impose an excessive burden on the Respondent in determining what precisely is required to be produced given the lack of particularity.

Paragraph four of the Schedule - CCTV footage

[19] The Applicant sought the CCTV footage on the basis it would show that a witness relied upon by the Respondent did not witness the Applicant swearing at a staff member (the event) because they were at another location at the time.

[20] Ms Francis for the Respondent gave evidence that the Respondent’s security department maintains CCTV footage for a period of 14 days and thereafter the footage is deleted due to capacity issues. Consequently, the Respondent was unable to obtain the CCTV footage due to it having been deleted and in any event objected that the CCTV footage was relevant because the event was referenced to an approximate time-frame.

[21] I accept there is a legitimate forensic purpose for an order to produce the CCTV footage as it may open up a line of enquiry. However, I am not satisfied that there is any realistic possibility that the Respondent has any documents to produce if I were to make the proposed order in light of the evidence of the CCTV footage deletion.

Paragraph five of the Schedule - computer record of operating list

[22] The computer record of the operating list was sought by the Applicant on the basis it was a precise record of his location when the event took place. The computer record would show that at the time of the event he was in the operating theatre and therefore could not have been present at the event.

[23] The Respondent objected to the proposed order to produce the computer record submitting it did not record when employees departed and returned to theatre while an operation was underway, and the time-frame for the event was an estimate only.

[24] I accept the submission of the Respondent and am satisfied that the computer record would not enable the Applicant to advance his case and apparent relevance has not been established.

Paragraph six of the Schedule - witness statements regarding the meetings on 28 July and 16 June.

[25] The Applicant sought a proposed order for witness statements regarding his conduct in meetings on 28 July 2016 and 16 June 2016 (the Meetings) on the basis the Respondent referred to these meetings when providing examples of his conduct.

[26] Ms Francis for the Respondent gave evidence that letters had been issued to the Applicant concerning his conduct in the Meetings for the purpose of informing the Applicant of behavioural expectations and in effect drawing a line in the sand, and that his conduct was considered inappropriate. Ms Francis confirmed witness statements were not obtained as an investigation into the Applicant’s conduct in the Meetings was not undertaken.

[27] The Applicant confirmed that he was not interviewed concerning his conduct in the Meetings.

[28] The Respondent objected to the proposed order for the documents submitting the conduct at Meetings was not relied upon as a reason for the Applicant’s dismissal.

[29] I have concluded that the documents sought have no apparent relevance to whether the Applicant’s dismissal was unfair given conduct at the Meetings was not relied upon as a reason for the Applicant’s dismissal. Furthermore, I accept the Respondent did not obtain witness statements and therefore am not satisfied that there is any realistic possibility that the Respondent has any documents to produce if I were to make the proposed order.

Paragraphs eight of the Schedule - investigation report and witness statements of the allegations dated 30 June 2016

[30] An investigation report and witness statements were sought by the Respondent on the basis of apparent relevance. The Applicant issued a formal warning to the Respondent after substantiating an allegation in the 30 June 2016 letter and relied upon the formal warning when determining to dismiss the Applicant.

[31] Ms Francis’ evidence was that an investigation report concerning the allegations in the 30 June 2016 letter were not prepared and witness statements were not obtained as the Applicant admitted distributing documents referred to in the allegation.

[32] Ms Francis submitted that the reasoning for substantiating the allegation was clearly provided in a letter to the Applicant of 28 July 2016, and there was no further information relevant to the Respondent’s decision making.

[33] I accept that the Respondent did not prepare an investigation report and witness statements and therefore am not satisfied there is any realistic possibility that the Respondent has any documents to produce if the proposed order was made.

DEPUTY PRESIDENT

Appearances:

S Sajish Kanamkombil on his own behalf.

C Francis from the Respondent

Hearing details:

2017.

Perth:

August 28

Final written submissions:

 1   [2011] FWA 8756 at [10] – [13].

 2   [2017] FWCFB 2200.

 3   [2017] FWCFB 2200 at [6].

 4   [2005] AIRC 799 at [13] - [16].

 5 [1988] AIRC 391 Print H2892 at [2].

 6 (1998) 19 WAR 350.

 7   Ibid (Kennedy, Pidgeon and Franklyn JJ) at p.379E.

 8   Santos Ltd v Pipelines Authority (SA) (No 2) (1996) 186 LSJS 257 (SACA).

 9   [2013] FWC 1585.

 10   [2017] FWCFB 4295 at [23].

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