Zheng Zou v Superway Pty Ltd

[2020] FWC 5192

[2020] FWC 5192

FAIR WORK COMMISSION

DECISION

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

Zheng Zou
v
Superway Pty Ltd
(U2020/10364)

DEPUTY PRESIDENT SAMS SYDNEY, 28 SEPTEMBER 2020

Termination of employment - small business - application for an unfair dismissal remedy - application listed for hearing - application for order to produce certain documents in six categories - alleged relevance and fishing expedition - orders not time or subject specific - orders granted in part or modified, or refused - parties to voluntarily provide documents or seek formal orders.

[1] This matter concerns an application filed by Mr Zheng Zou (the ‘applicant’), pursuant to s 394 of the Fair Work Act 2009 (the ‘Act’) in which he seeks compensation for his alleged unfair dismissal by Superway Pty Ltd (the ‘respondent’) on 19 July 2020. The application is listed for hearing on 20 October 2020 as to the respondent’s jurisdictional objection, it being a small business and having complied with the Small Business Fair Dismissal Code (s 385(c)) and the merits of the matter. Directions have been issued in preparation for the hearing.

[2] This decision deals with an application filed on 8 September 2020, for an order to produce directed to the applicant, pursuant to s 590 of the Act. The respondent’s notice to produce is as follows:

1. ‘An electronic file containing the photos in the original format showing the alleged "cash back" against the Respondent over the period between 15 November 2017 and 19 July 2020.

2. The Applicant's lodged tax return and notices of assessment for the 2017118, 2018/19 and 2019/20 Financial Years.

3. A copy of all correspondence including but not limited to any email, letter, text message, communication in all social platforms, voice message or other recording between the Applicant and 7-Eleven Stores Pty Ltd and/or its employees and agents and former employees and agents.

4. A copy of all correspondence including but not limited to any email, letter, text message, communication in all social platforms, voice message or other recording between the Applicant and Junda Su, the previous employee of the Respondent.

5. A copy of all correspondence including but not limited to any email, letter, text message, communication in all social platfonns, voice message or other recording between the Applicant and Yisen Gong, the previous employee of the Respondent.

6. A copy of all correspondence including but not limited to any email, letter, text message, communication in all social platforms, voice message or other recording between the Applicant and Haoming Wu, the previous employee of the Respondent.’

[3] Both parties have been granted permission to be represented by a lawyer, pursuant to s 596; the applicant being represented by Mr L Meagher and Ms R Featherstone of Redfern Legal Centre, and the respondent by Ms S Dai of Juris Cor Legal. The applicant has objected to all six categories of documents sought in the notice to produce. As a result, I directed the parties to file short submissions and it was agreed that I determine the application ‘on the papers’.

Relevant statutory provisions and principles

[4] Applications of this kind are made under s 590 of the Act, which relevantly provides as follows:

(1) The FWC may, except as provided by this Act, inform itself in relation to any matter before it in such manner as it considers appropriate.

(2) Without limiting subsection (1), the FWC 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.

[5] The Fair Work Commission Rules 2013, provide that a party in a matter before the Commission may, by lodging a draft order, request that the Commission inform itself in relation to the matter, by issuing an order requiring a person provide copies of documents or any other information to the Commission.

[6] In a Full Bench decision, the Commission set out the principles applying to the issue of orders for production under s 590(2)(c) of the Act. In Kennedy v Qantas Ground Services Pty Ltd t/a Qantas Ground Services Pty Ltd, Qantas Group[2018] FWCFB 3847 (‘Kennedy’), the Full Bench said at [23]:

‘The power conferred by s.590(2)(c) is a discretionary one to be exercised for the purpose of the Commission informing itself as to a matter before it. The Commission will be guided in the exercise of its discretion by the practice followed by courts in civil proceedings when issuing subpoenas. The documents sought must have apparent relevance to the issues in the proceedings. Access to the documents sought must be for the purpose of supporting a case which is intended to be advanced, not to explore if there is a supportable basis for a case that might potentially be advanced. The documents required to be produced must be described with sufficient particularity, and the burden of producing them must not be oppressive.’ (footnotes omitted)

[7] In an oft quoted passage from Clerks (Alcoa) Case (1988)Print H2892, Munro J at [2] said:

‘A party will not be required to produce documents where to do so would be oppressive; or where the demand for production is a "fishing expedition", in the sense that it is an endeavour not to obtain evidence to support a case, but to discover whether there is a case at all. Where the proper use of legal compulsion to produce documents is in issue, the tribunal will need to carry out an exercise of judgment upon the particular facts in each case. That judgment requires a balance on the one hand of the reasonableness of the burden imposed upon the recipient, and of the invasion of private rights, with on the other hand, the public interest in the due administration of justice and in ensuring that all material relevant to the issues be available to the parties to enable them to advance their respective cases’.

I shall deal with the matters in the order they were considered in the hearing.

Proposed Order 1

[8] The applicant submitted this order was ambiguous and excessively broad. He proposed an alternative wording which the respondent indicated its acceptance of. I will therefore adopt the applicant’s proposed wording and grant the order.

Proposed Order 2

[9] The grant of this order may tend to confirm or otherwise the extent of any tax deductions made by the employer in respect to the applicant’s salary. I propose to grant the order, but taking into account privacy concerns, the documents will be confidential to the parties’ legal representatives and the Commission.

Proposed Order 3

[10] Ordinarily, it would be expected that a respondent would have in its possession any communications between itself and the applicant. In any event, given that 7-Eleven Stores Pty Ltd would have many hundreds, if not thousands, of current and former employees and agents, the order directed to these persons is far too broad, onerous and non-specific.

[11] Further, given the recent termination of the respondent’s franchise with 7-Eleven Stores Pty Ltd, it may be reasonably understood that the respondent would have some difficulty in complying with an order directed to a third party, which it no longer has any relationship with.

[12] Moreover, there is no time period over which these communications are sought, and the proposed order does not delineate communications between personal and work-related issues, and therefore the order sought is excessively onerous.

[13] Proposed Order 3 is refused.

Proposed Orders 4 to 6

[14] These orders are cast in the same terms directed to three named persons, being former employees or persons believed to be involved in the applicant’s request to the franchisor for an investigation. They form part of the respondent’s defence in opposition to the unfair dismissal application.

[15] However, again, the orders suffer from the same fault as in Proposed Order 3 in that they are non-time specific, nor are the orders subject specific. I will grant the proposed orders in respect to communications between Junda Su, Yisen Gong and Haoming Wu, but limit the orders to any communications between the applicant and the three named persons, concerning the applicant’s request for a franchisor’s investigation of alleged underpayments.

[16] Should the parties require formal orders in respect to my conclusions above, rather than voluntarily providing the documents, I will do so. Such request should be made within 48 hours of the publishing of this decision.

DEPUTY PRESIDENT

Appearances:

Mr L Meagher and Ms Regina Featherstone, Solicitors, Redfern Legal Centre, on behalf of the applicant.

Ms S Dai, Solicitor, Juris Cor Legal, on behalf of the respondent.

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