Fair Work Act 2009

s.789FC - Application for an order to stop bullying

Application for an Order pursuant to s.590(2)(c) for production of documents.

• [1] On 13 September 2021, the Respondents applied for an order for the production of documents.

• [2] The substantive application is listed to be heard on 5 October 2021.

• [3] The Respondents seek that the Commission make an order directed to a medical practitioner that the Respondents understand to be the Applicant's general practitioner, to produce all documents relating to any medical or allied health treatment provided to the Applicant in the period 19 December 2019 to 10 September 2021.[1]

• [4] The production of documents was opposed by the Applicant, and a hearing was held on 16 September 2021 to deal with the application for an order to produce.

• [5] Section 590(2)(c) of the Fair Work Act 2009 (Cth) (the Act) provides that:

(2) [Powers of the FWC to inform itself] 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.

• [6] The principles applying to the issue of orders for production by the Commission under s.590(2)(c) of the Act are well established. For example, 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."[2]

• [7] The Commission may, therefore, order any person (including third parties) to provide copies of documents, records, or other information to enable the Commission to make determinations relating to matters before it.

• [8] The decision to make or not make an order is discretionary. In D.A. v Baptist Care[3], the discretion was described as one that will generally be exercised in favour of the applicant for an order unless it would be "vexatious or frivolous or otherwise an abuse of process to issue the summons." The same decision includes a non-exhaustive list of considerations relevant to the exercise of the discretion, along with public interest matters to consider.[4]

• [9] Counsel for the Respondents submitted that the Order should be issued because:

• The documents are relevant to a fact put in issue by the Applicant: her mental state during a period of alleged bullying, and the content of the medical records bears upon that issue;

• The issue of the Applicant's perception of her treatment in the workplace is in issue in the context of an objective assessment by the Commission of any unreasonable behaviour;

• The Applicant had stated that she would produce (some) medical records in her witness statement, and so there is no tenable basis to resist the Order;

• • The Respondents are willing to agree to a suitable confidentiality order if necessary.[5]

• [10] Counsel for the Respondents submitted that the Applicant has put her mental state in issue. This is said to be in relation to two paragraphs in a witness statement of the Applicant which has been filed in the substantive case.[6] In those paragraphs the Applicant describes her state of mind and level of distress on a particular day in May 2021, and includes that she went to hospital to seek medical assistance and was referred to the Crisis Assessments & Treatment (CAT) Team.

• [11] The solicitor for the Applicant opposed the Application, principally on the grounds of relevance. The Applicant's solicitor made the further submission that:

"It would be a disturbing (but highly foreseeable) outcome of allowing this type of application that employees would not seek emergency medical care because of a concern that their employer could gain access to their highly private and sensitive material in wholly unrelated proceedings. My client engaged candidly about a range of deeply personal matters with the CAT Team in circumstances where she was deeply traumatised and believed her exchange with the CAT Team would remain confidential. ...To force her medical providers to hand over her confidential medical material would be an egregious breach of trust and is immaterial to the matters in dispute."[7]

• [12] Counsel for the Respondents submitted that, whilst the determination of the substantive application involves the application of an objective test, the Applicant's evidence goes to the objective assessment of whether the conduct, if found to have occurred, creates a risk to health and safety. Further, referring to the decision of Hampton C in Ms SB, counsel submitted that the emotional and psychological state of the Applicant is a relevant consideration in assessing whether the alleged conduct was reasonable management action.

• [13] In Ms SB, Commissioner Hampton said:

"[49] Determining whether management action is reasonable requires an objective assessment of the action in the context of the circumstances and knowledge of those involved at the time. Without limiting that assessment, the considerations might include:

• the circumstances that led to and created the need for the management action to be taken;

• the circumstances while the management action was being taken; and

• the consequences that flowed from the management action.

[50] The specific 'attributes and circumstances' of the situation including the emotional state and psychological health of the worker involved may also be relevant."[8] (underlining added)

• [14] The solicitor for the Applicant submitted that the documents sought are not relevant, and in particular:

"The reason the Applicant made the allegations is not the question in dispute. The dispute is a factual one to be objectively assessed independently of the Applicant's health - did the Respondents engage in repeated unreasonable behaviour directed at the Applicant. Whether the Applicant may or may not have been particularly sensitive to the conduct of the Respondents does not alter the objective test to be determined by the Commission and, as such, the Applicant's medical state can have no bearing on this question."[9]

• [15] I consider that the documents sought are not sufficiently relevant (either real, apparent or adjectively) to warrant the order sought. The question that I will need to determine in the substantive matter is whether the Respondents engaged in behaviour that amounts to bullying within the meaning of the Act. That task includes being satisfied that an individual or group of individuals repeatedly behaved unreasonably towards the Applicant, and that that behaviour creates a risk to health and safety. This is an objective test. It is neither necessary, nor necessarily relevant for the Applicant to establish that there has been actual harm to her health and safety.

• [16] The Respondents acknowledge that the relevant test is objective but submit that in making the objective assessment as to whether the alleged conduct, if found, creates a risk to health and safety, I will necessarily have regard to the effect of that behaviour on the Applicant. However, I am also not satisfied that the detailed medical information sought is relevant, or necessary for the Respondents to be able to defend the application. In presenting its foreshadowed case that conduct was reasonable management action, it seems to me that whilst the emotional state and psychological health of the Applicant may be relevant in considering whether any conduct was reasonable management action, this would be assessed on the basis of the Respondents' knowledge of the Applicant's health (or manifestations) at the time of the conduct, and would not be assisted by obtaining detailed medical information after the fact.

• [17] I note that counsel for the Respondents indicated that even if the Applicant agreed to excise the two paragraphs in her witness statement that the application for an order to produce documents was founded upon, it would still press for the Order to be issued.

• [18] Even if I was satisfied that the documents sought were relevant, I would not exercise my discretion to order their production. The documents sought are deeply personal, and I agree with the Applicant's solicitor's submission that if the Applicant was to be ordered to produce such documents, it may discourage her from seeking emergency medical care because of a concern that any material could be required to be disclosed to her employer. Whilst there is no evidence to this effect before the Commission, considering the material before the Commission, it is also possible that requiring such material to be produced may, itself, have a harmful impact on her health and wellbeing. That risk is something that should be avoided unless there is a compelling reason to do so. I am not satisfied that attaching confidentiality conditions to the Order would remove this risk.

• [19] The application for an Order to produce documents is refused.

J Kelly of Kelly Workplace Lawyers for the Applicant.

[1] This is a summary of the documents sought to be produced, the Schedule to the application for an order for production filed by the Respondents sets out in greater detail the documents sought.

[2] Esso Australia Pty Ltd v AWU, AMWU and CEPU [2017] FWCFB 2200 at [6].

[3] D.A. v Baptist Care SA [2019] FWC 7358 at [36].

[5] See Respondent's Outline of Submissions, 15 September, at [10]-[14].

[6] Applicant's witness statement, 25 August, at [115]-[116].

[7] Applicant's Outline of Submissions in reply, 16 September 2021, at [9].

[8] Ms SB [2014] FWC 2104 at [49]- [50].

[9] Applicant's Outline of Submissions in reply, 16 September 2021, at [5].

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