This decision of the Fair Work Commission explains the “Harman undertaking”, which requires a party to a case who gains access to documents or information produced under compulsion is not permitted to use the information for an unrelated or collateral purpose.
“Application for an unfair dismissal remedy – application for release from implied Harman undertaking which refers to the implied obligation
that a party who has access to documents or information produced under compulsion in one
proceeding is not permitted to use the information for an unrelated or collateral purpose.
[1] Mr Shoaib Mohammed has made an application under s.394 of the Fair Work Act 2009
(the Act) for an unfair dismissal remedy. The application is scheduled to be heard on 6 July
2026.
[2] Pursuant to directions, the Respondent filed its’ material including a supplementary
witness statement of Tomasz Molczyk, signed and dated 22 May 2026 (the Witness
Statement) and supporting documents including a document titled “R3 – Overnight work not
being directed” (R3 Document). Neither document has yet been tendered into evidence, which,
in the usual course, would occur at the hearing on 6 July 2026. It is possible that the documents
may be withdrawn, amended or not relied upon at the hearing.
[3] Mr Mohammed has also made a workers compensation claim that is awaiting
determination by the claims agent, Gallagher Bassett.
[4] Mr Mohammed has applied for an Order releasing him from the implied Harman
undertaking of not using documents for an unrelated purpose in respect to the Witness
Statement and R3 Document. The release sought is limited to providing those two documents
to Gallagher Bassett solely for the purpose of assessing Mr Mohammed’s worker’s
compensation claim. The application is opposed by the Respondent. Both parties agreed that I
determine the application on the papers.
[5] The undertaking, referred to as the Harman undertaking1
refers to the implied obligation
that a party who has access to documents or information produced under compulsion in one
proceeding is not permitted to use the information for an unrelated or collateral purpose. In order
to be released from the implied undertaking, an applicant must demonstrate “special
circumstances”.2 Where special circumstances are found to exist, it is then a matter of discretion
as to whether to grant the release. In Liberty Funding Pty Ltd v Phoenix Capital Ltd3
; Branson,
Sundberg and Allsop JJ explained the proper approach as follows:
[2026] FWC 2082
DECISION
[2026] FWC 2082
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“… The notion of “special circumstances” does not require that some extraordinary
factors must bear on the question before the discretion will be exercised. It is sufficient
to say that, in all the circumstances, good reason must be shown why, contrary to the
usual position, documents produced or information obtained in one piece of litigation
should be used for the advantage of a party in another piece of litigation or for other
non‑litigious purposes. The discretion is a broad one and all the circumstances of the
case must be examined. In Springfield Nominees, Wilcox J identified a number of
considerations which may, depending upon the circumstances, be relevant to the
exercise of the discretion. These were:
• the nature of the document;
• the circumstances under which the document came into existence;
• the attitude of the author of the document and any prejudice the author
may sustain;
• whether the document pre‑existed litigation or was created for that
purpose and therefore expected to enter the public domain;
• the nature of the information in the document (in particular whether it
contains personal data or commercially sensitive information);
• the circumstances in which the document came in to the hands of the
applicant; and
• most importantly of all, the likely contribution of the document to
achieving justice in the other proceeding.”
[6] The unfair dismissal application and the workers’ compensation claim involve the same
parties arising from the same employment relationship and involve an overlapping factual
context. The unfair dismissal application includes claims that Mr Mohammed is unfit for work
due to a workplace injury developed as a result of sustained workplace pressures. The asserted
injury is the subject of the workers’ compensation claim. I am satisfied that this constitutes
special circumstances, and that I should consider whether to exercise my discretion to grant the
limited release sought.
[7] The Witness Statement includes a statement concerning the hours Mr Mohammed was
working at a point in time. R3 is an email chain that Mr Mohammed was a party to. The email
chain would be able to be produced by Mr Mohammed and would be discoverable in any event.
In relation to the Witness Statement, I consider that it is relevant to the issues likely to be
considered in determining the workers’ compensation claim, although, the extent of this is
questionable given that it has not yet been admitted into evidence. Nonetheless, I am satisfied
that it may aid the timely determination of the workers’ compensation claim.
[8] The Respondent’s grounds for opposing the release are that the relevant paragraph
within the Witness Statement does not contain an admission or acceptance of liability regarding
the cause of Mr Mohammed’s injury, or any admission in regard to the allegations concerning
workload, workplace conduct, or psychological injury. That is the case and is apparent from the
relevant documents. Indeed, the Respondent states that it does not dispute that periods of long
working hours occurred during the relevant period, which is all that is contained within the
relevant paragraph of the witness statement that the release is sought over.
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[9] I have therefore decided to exercise my discretion to release the Witness Statement and
the R3 Document for the sole purpose of providing those two documents to Gallagher Bassett
for the purpose of determining Mr Mohammed’s workers’ compensation claim.
[10] I will shortly issue an Order granting leave to Mr Mohammed to provide the witness
statement and R3 Document to Gallagher Bassett.”
Mr Shoaib Mohammed v Motyl Interiors Pty Ltd [2026] FWC 2082 per O’Neil DP delivered 5 June 2026