Zheng Zou v Superway Pty Ltd (No 2)
[2020] FWC 5452
•13 OCTOBER 2020
| [2020] FWC 5452 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s 394—Unfair dismissal
Zheng Zou
v
Superway Pty Ltd (No 2)
(U2020/10364)
DEPUTY PRESIDENT SAMS | SYDNEY, 13 OCTOBER 2020 |
Termination of employment - small business - application for an unfair dismissal remedy - application for order to produce documents - alleged relevance - orders opposed by respondent but directed to third parties - no authority for respondent to act for or make submissions on behalf of third parties - documents relevant to substantial issue in the proceedings as to reason for dismissal - orders granted.
[1] This decision concerns a second interlocutory application in relation to an unfair dismissal application filed by Mr Zheng Zuo (the ‘applicant’) and which is listed for jurisdictional hearing on 20 October 2020. This application seeks orders from the Fair Work Commission (the ‘Commission’), pursuant to s 590(2)(c) of the Fair Work Act 2009 (the ‘Act’) in respect to the production of certain documents. The respondent to the application is Superway Pty Ltd, a former franchise of 7-Eleven Pty Ltd.
[2] The application was filed by the applicant’s solicitor, Ms Regina Featherstone, Redfern Legal Centre, on 30 September 2020. The orders are directed to both Mr Rod Keuris and 7-Eleven Pty Ltd. The documents sought in the notice to produce are as follows:
‘1. A copy of all correspondence, and records of any communication (including file notes of conversations), between:
• 7-Eleven Stores Pty Ltd (7-Eleven), and
• any current or former employees of Superway Pty Ltd (Superway),
in relation to any investigation Mr Keuris, 7-Eleven or both Mr Keuris and 7-Eleven conducted in 2020 into allegations Superway underpaid its staff.
2. A copy of all documents provided to 7-Eleven for the purpose of consideration by, or which in fact were considered by, Mr Keuris, 7-Eleven or both Mr Keuris and 7-Eleven, when investigating (in 2020) whether Superway underpaid its staff.
3. A copy of any report or findings, including any draft report or findings, into allegations of underpayment by Superway, which 7-Eleven has in its possession.’
[3] The applicant’s Notice to Produce (under three headings), was opposed by Ms Siyang Dai, Juris Cor Legal, solicitor for the respondent. This opposition was based on four principal grounds, in that each order:
• was unnecessarily broad and seeks information irrelevant to the facts in issue in the proceedings; namely, whether any other employee made underpayment complaints to 7-Eleven;
• does not have a legitimate forensic purpose;
• will cause great inconvenience to 7-Eleven and compromise its commercial privacy; and
• will delay the progress of the proceedings on 20 October 2020 and cause prejudice to Superway.
[4] In reply, the applicant’s solicitor submitted:
‘2. In relation to the argument that as "Order 1"1 should be limited to the records and correspondence between 7-Eleven or Rod Keuris and Mr Zou (and not other employees); and only in relation to the investigation of the allegations Superway underpaid Mr Zou (and not other employees):
(a) Superway's case is that one valid reason for the dismissal was that Mr Zou made false allegations of underpayments to 7-Eleven.
(b) Mr Zou says that this was not a valid reason for dismissal, because (amongst other reasons) his allegations were true.
(c) Mr Zou's case is that he reported underpayments to Superway, not just in relation to him being underpaid, but also other employees. Accordingly, consideration of whether he made false allegations of underpayments should not be limited to allegations he (and not other employees) was underpaid.
(d) Superway has filed various statutory declarations from former Superway employees which provide that Superway did not underpay them, presumably for the purpose of attempting to establish that Mr Zou was not underpaid. We expect the correspondence between 7-Eleven and employees sought by Order 1 may contradict these statutory declarations. This is not merely being sought to undermine credibility, but goes to whether specific evidence sought to be relied on by Superway is true.
3. Order 2 seeks evidence provided for the purpose of consideration by, or which were in fact considered by, Mr Keuris or 7-Eleven when investigating in 2020 whether Superway underpaid staff. The may establish whether Mr Zou's allegations that he, and other employees, were underpaid was true or false, which is relevant for the determination of whether there was a valid reason for dismissal, as described above. Given the timeframe for production, there is no reason to believe it would delay progress of the trial or cause prejudice to Superway.
4. Order 3 seeks a report of findings into allegations of underpayment by Superway, which may help establish (by pointing out relevant evidence and material) whether Mr Zou's allegations of underpayment were correct.’
[5] In the first interlocutory decision, Zou v Superway Pty Ltd[2020] FWC 5192, I set out the relevant statutory principles to be applied to applications of this kind; see: [4]-[7]. I do not recite these passages in this decision, but rely on them.
[6] The first matter I intend to raise is that Ms Dai is the solicitor of record for the respondent, Superway Pty Ltd. There is no evidence that Ms Dai is representing either Mr Rod Keuris or 7-Eleven Pty Ltd. They are both third parties, who have expressed no interest in these proceeding to date. Moreover, Ms Dai purports to speak on behalf of 7-Eleven Pty Ltd when her submission states, inter alia, ‘[t]he information sought by Mr Zou will cause great inconvenience to 7-Eleven Pty Ltd and compromise its commercial privacy’. There is no evidence that Ms Dai is representing 7-Eleven Pty Ltd or has any authority to put submissions on its behalf.
[7] That said, I do no consider the documents sought are irrelevant to the alleged reason,the applicant claims he was dismissed for; namely, that he had made complaints to 7-Eleven Pty Ltd on his own behalf and on behalf of others in respect to alleged underpayments by the respondent. I accept, of course, that the respondent’s jurisdictional objection is that the applicant was not dismissed and therefore, he could not have been unfairly dismissed (s 385). This is the fundamental dispute between the parties which the Commission will determine.
[8] In my view, the documents sought:
• are not a ‘fishing expedition’ and, at the very least, have an apparent relevance to the matters in issue in the proceedings;
• could not be said to be too broad or general and would seemingly be readily identifiable and limited to a specific subject matter and a small number of current or former employees of the original franchisee, Superway Pty Ltd; and
• there is no basis for a submission that the production of documents, directed to a third party, will unnecessarily delay progress of the proceedings on 20 October 2020.
[9] Accordingly, I grant the orders sought by the applicant with the production of documents sought returnable by 12pm AEDT 19 October 2020.
[10] An order to this effect will be issued shortly after the publication of this decision.
DEPUTY PRESIDENT
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