Unfair dismissal cases and production of documents

In cases in Australian civil courts the pre-trial tool of obtaining orders from the court for the opponent to produce relevant documents about the issues in the trial of the case to the opposing party is a very powerful forensic tool and often is the difference between winning or losing the case. The same is true in cases in the Fair Work Commission, provided that the orders only relate to relevant documents.

Here are the principles from an extract from a case on point.

“[1] On 13 April 2022, Mr Garth Mangan (Applicant) made an application to the Fair Work Commission (Commission) under s.394 of the Fair Work Act 2009 (Cth) (FW Act) for a remedy, alleging that he had been unfairly dismissed from his employment with BHP Coal Pty Ltd (Respondent).

[2] On 13 June 2022, the Applicant made an application to the (Commission) under s.590(2)(c) of the FW Act seeking orders for the production of documents that, it claims, are relevant to his case.

[3] The Applicant seeks the production of documents in the following categories:

  1. a) The investigation report produced by Dianne Cubbins in relation to a factual investigation into an EthicsPoint report that Ms Cubbins conducted as particularised in correspondence sent from email address dianne.cubbins@bhp.com to the Applicant on January 12, 2022 (Category One);
  2. b) All documents, within the meaning of the Evidence Act 1995 (Cth), that were:
  3. Created by the Dianne Cubbins in conducting the investigation at (1) above;
  4. Received by Dianne Cubbins in conducting the investigation at (1) above;
  5. Sent by Dianne Cubbins in conducting the investigation at (1) above;
  6. Relied upon by Dianne Cubbins in making conducting the investigation at (1) above (Category Two);
  7. c) The EthicsPoint report, which contained allegations regarding the Applicant’s conduct as particularised in email correspondence from email address dianne.cubbins@bhp.com to the Applicant on January 12, 2022 (Category Three);
  8. d) The investigation report produced by Dianne Cubbins, or another person, that was relied upon by the Respondent in correspondence dated (incorrectly) 1 April 2022 authored by Brent McKay, Manager Production Coal BMA Saraji Mine, regarding the findings of the investigation (Category Four);
  9. e) All documents, within the meaning of the Evidence Act 1995 (Cth), that were:
  10. Created by the Dianne Cubbins, or any other person, in conducting the investigation at (4) above;
  11. Received by Dianne Cubbins, or any other person, in conducting the investigation at (4) above;
  12. Sent by Dianne Cubbins, or any other person, in conducting the investigation at (4) above;
  13. Relied upon by Dianne Cubbins, or any other person, in making factual findings in relation to the investigation at (4) above (Category Five); and
  14. f) All emails, sms messages and other correspondence sent and received by Ms Dianne Cubbins in relation to the investigation referred to in (1) above when she was working on behalf of the Ethics and Investigations team at BHP as outlined in her email of January 12, 2022 (Category Six).

[4] The Applicant argued that the documents were relevant to the matters the Commission was required to determine and submitted as follows:

“The documents are being sought because the Respondent’s failure to properly particularise the Applicant’s alleged conduct or provide probative evidence supporting the allegations which the Applicant was initially advised of by way of email on 12 January 2022.

In correspondence dated (incorrectly) 1 April 2022 authored by Brent McKay, Manager Production Coal BMA Saraji Mine, Mr McKay advised that “The investigation is now complete” and that the investigation made findings regarding the Applicant’s conduct. These findings were relied upon by the Respondent when terminating the Applicant’s employment.

The documents relied upon by the investigator Dianne Cubbins, or any other person, when making their findings are being sort due to the lack of information provided in the allegations allowing the Applicant to provide a cogent response to the allegations raised especially in circumstances where his employment could be terminated. Some of the allegations were historic in nature and only 3 of the 20 allegations put to the Applicant provided a specific day as to when an incident occurred. The other 17 allegations only referenced that there was an incident which occurred on or around a month and year. No names were provided as to who the Applicant purportedly said the statement to for any of the Allegations.

Due to the historic nature of a number of the allegations and the failure of the Respondent to properly particularize the alleged conduct, the Applicant has suffered significant prejudice.

This matter involves significant contests of fact. Relevantly, the “Practice note: Fair hearings” Fair says the following (at [18]):

“Where a fact needs to be established, and that fact is contested, the Commission will determine the question on the balance of probabilities (i.e. whether it is more likely than not). In considering the evidence, the Member may seek further information from the parties, but will not rely solely on statements made from the bar table, unless those statements are unchallenged. Members may inform themselves in relation to matters before them as they consider appropriate, including by, inter alia, requiring a person to provide copies of documents or records, or to provide any other relevant information to the Commission.”

The Applicant submits that the Commission can be satisfied that in making the orders sought by the Applicant, it will allow the Applicant to fairly put his case.”

[5] The Respondent submitted that it was prepared to provide the documents in Categories One and Four subject to an order being made by the Commission but otherwise objected to the production of the remaining documents requested on the grounds of confidentiality, that some may qualify for protection under the Corporations Act and the Respondent’s Whistleblower Policy and that it was not in the interests of justice to do so.

[6] Attempts to resolve the production issues through a conciliatory process were unsuccessful. This decision addresses the ‘production’ application.

Principles

[7] In CEPU v South32 Ltd 1 Deputy President Beaumont provided the following helpful summary:

  1. a) the power conferred by s 590(2)(c) is a broad discretionary one to be exercised for the purpose of the Commission informing itself as to a matter before it; 2
  2. b) the power should be exercised in accordance with the principles applied by the courts in civil proceedings when issuing subpoenas; 3
  3. c) the documents sought must have apparent relevance to the issues in dispute in the proceedings; 4
  4. d) 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; 5
  5. e) the documents required to be produced must be described with sufficient particularity, and the burden of producing them must not be oppressive, in the sense ‘of placing an unreasonable burden on the person required to comply’, 6and the request for production must not be a fishing expedition;
  6. f) the Commission may also take into account 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; 7and
  7. g) generally speaking, the Commission will exercise its discretion in favour of an applicant unless it appears that it would be vexatious or frivolous or otherwise an abuse of process. 8

[8] In the Full Bench decision in Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Fredon Industries Pty Ltd t/a Fredon 9 the Bench found at [19]:

“that in considering whether to exercise its discretionary power to require production of documents under s 590(2)(c) of the FW Act the Commission will be guided by the practice followed by courts in civil proceedings when issuing subpoenas. In short compass, the test is whether the documents sought have an apparent relevance to the issues in the proceedings. 10 In this regard a Full Bench of the Commission in Kennedy v Qantas Ground Services Pty Ltd11 observed:

“…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. 12

[9] The following passage from the Full Court’s decision in Wong v Sklavos9 is often cited in relation to apparent relevance:

“Although the parties referred to several authorities concerning the requirement for subpoenaed documents to have apparent relevance to an issue in a proceeding, in our opinion, the applicable principles are well established. The party issuing a subpoena bears the onus of demonstrating that the subpoena has a legitimate forensic purpose in relation to the issues in the proceedings: Santos Ltd v Pipelines Authority of South Australia [1996] SASC 5578; (1996) 66 SASR 38 at 52. A subpoena may be set aside if it requires the production of documents which do not have apparent relevance to the issues arising on the pleadings: Trade Practice Commission v Arnotts Ltd (No 2) [1989] FCA 248; (1989) 88 ALR 90; Campaign Master (UK) Ltd v Forty Two International Pty Ltd (No 4) [2010] FCA 398; (2010) 269 ALR 76 at [39]-[40]; McHugh v Australian Jockey Club Limited [No 2] [2011] FCA 724 at [13]; McIlwain v Ramsey Food Packaging Pty Ltd [2005] FCA 1233; (2005) 221 ALR 785 at [35]; Dorajay Pty Ltd v Aristocrat Leisure Ltd [2005] FCA 558 at [17]. Other cases have used different terminology, but with essentially the same effect, for example, by requiring that, viewed realistically, the documents sought have a bearing on an issue which is not unreal, fanciful or speculative (R v Barton (1981) 2 NSWLR 414 at 420), or that the material sought is reasonably likely to add in some way to the relevant evidence in the case (Spencer Motors Pty Ltd v LNC Industries Ltd (1982) 2 NSWLR 921 at 927), or that it be “on the cards” that the documents sought will materially assist the party at whose request the subpoena has been issued: Allister v The Queen (1984) 154 CLR 404 at 414; Tamawood Ltd v Habitare Developments Pty Ltd [2009] FCA 364 at [13], [35]-[38].”

[10] Justice Abrahams in Roberts-Smith v Fairfax Media Publications Pty Limited (No 15) further observed:10

“… The test for apparent relevance has been described as having a low threshold. A document or class of documents may satisfy that threshold if it gives rise to a line of enquiry relevant to the issues before the trier of fact: Hooke v Bux Global Limited (No 2) [2018] FCA 836 at [38], citing Boase v Axis International Management Pty Ltd (No 3) [2012] WASC 498 at [11]. What is involved then is a question about reasonable likelihood, not possibility: Chief Executive Officer of Australian Transactions Reports and Analysis Centre v TAB Ltd [2016] FCA 122 at [40] citing Seven Network Ltd v News Ltd (No 11) [2006] FCA 174 at [6].”

Confidentiality

[11] The Full Court 13 further reinforced that confidentiality is not of itself a reason to set aside a subpoena:

“The documents sought by Dr Sklavos are undoubtedly of a confidential kind and it is very understandable that the appellants wish to protect that confidentiality. However, as is well established, confidentiality is not of itself a reason to set aside a subpoena: Hospitality Group Pty Ltd v Australian Rugby Union Ltd (2001) FCA 1040; (2001) 110 FCR 157 at [80]-[83]. King CJ observed in Alliance Petroleum Australia NL v The Australian Gaslight Company (1983) 34 SASR 215 at 239 that it is commonly the case that “the risk to the confidentiality of the information must be tolerated in the interests of the administration of justice”.”

[12] The Full Court accepted that the confidentiality of the documents sought is nonetheless one of many factors to be considered. The Full Court cited the following passage from Apache Northwest Pty Ltd v Western Power Corporation 14 with approval:

“The next issue is that relating to confidentiality. There is, no doubt, some need in this matter to balance competing interests. In the end, however, the public interest in the administration of justice should prevail …

Her Honour, rightly in our view, found herself unable to ascribe any public interest to the confidentiality of the documents in question in the present case, however much it may be in the appellants’ individual interests. She did, however, accept that, although, standing alone, confidentiality is not a ground for refusing to issue, or for setting aside, a subpoena, it is a factor which is to be taken into account, together with those tests for oppression which are determined by reference to the breadth of the subpoena, the definition of the documents involved and the type and degree of burden placed upon those to whom the subpoena is addressed. She also accepted that the relevance of the confidential documents being sought to the issues in the arbitration is a further factor” 15

………………………………………[25] I am also cognisant of the words of the Full Bench in Kennedy v Qantas Ground Services in that the documents sought appear to be exploring if there is a supportable basis for the case that might be potentially advanced rather than supporting a case which is intended to be advanced without further particularity.

[26] Additionally, albeit weighing only slightly against the making of such an order, the broad nature of the orders sought are likely to capture the private and confidential information of third party individuals which do not have a nexus to the apparent relevance of the issues in question and are likely to cause an oppressive amount of work if I were to order that such information be redacted.

[27] In all the circumstances, I am not prepared to make an order in the terms sought, nor make an order in modified terms in regard to Category 2……………”

Mangan v BHP Coal Pty Ltd (2022) FWC 1575 delivered 21 June 2022 per Moltoni DP