Fair Work Act 2009

s.394 - Unfair dismissal

Application for an order pursuant to s.590(2)(a) requiring a person to attend before the Fair Work Commission - Application for an unfair dismissal remedy.

[1] On 26 December 2017, Mr Colin Reguero-Puente (Mr Reguero-Puente) filed an application (Application) pursuant to section 394 of Fair Work Act 2009 (Cth) (FW Act) with the Fair Work Commission (FWC) alleging he was unfairly dismissed by the City of Rockingham (City).

[2] On 5 January 2018, the City lodged a Form F3 Employer Response to the Application noting it had no jurisdictional objections to the Application.

[3] On 30 January 2018, the matter went to conciliation before a FWC staff conciliator but the parties were unable to resolve the issues in dispute.

[4] The parties subsequently attended a conciliation conference before Deputy President Binet on 13 February 2018, but the issues in dispute remain unresolved. At the conclusion of the conference, both parties were advised that directions would be issued for the hearing and determination of this matter.

[5] The matter has been listed for a Hearing before Deputy President Binet in Perth at 10:00am, Monday, 16 April 2018 for the determination of the merits of this matter (Hearing).

[6] On 14 February 2018 Directions were issued for the conduct of this matter (First Directions). On 20 February 2018, Mr Reguero-Puente sought an extension to the filing dates and amended directions were issued later on 20 February 2018 (Second Directions). The Second Directions provided that Mr Reguero-Puente was required to file his materials by close of business on Thursday, 1 March 2018. Mr Reguero-Puente failed to file his materials in accordance with the amended directions.

[7] On 22 February 2018 Mr Reguero-Puente made an application for Orders Requiring Production of Documents requiring the City to produce the documents stored under the headings "000 Personal" and "Staff Issues" on his work computer (Order to Produce)

[8] On 26 February 2018 the City agreed to provide the documents requested in the Orders to Produce to Mr Reguero-Puente (Requested Documents).

[9] On 26 February 2018 Mr Reguero-Puente made an application for orders requiring a person to attend before the Fair Work Commission (Orders to Attend). That application was not compliant with the Rule 53(1) and Sub-rule 8(2) of the Fair Work Commission Rules 2013 (Cth)

[10] A telephone directions conference was held on 2 March 2018 to deal with Mr Reguero-Puente's non-compliance with the Second Directions, his application for an Order to Produce and his application for an Order to Attend (Directions Conference).

[11] Following the Directions Conference, further amended directions were issued to the parties (Third Directions). The Third Directions granted Mr Reguero-Puente a final extension until 6 March 2018 to file his materials. The City was directed to file in the FWC and serve on Mr Reguero-Puente its materials by 20 March 2018. The Third Directions also provided that, if having reviewed the City's filed materials, Mr Reguero-Puente still sought Orders to Attend, he was directed to file the following documents by 27 March 2018:

• F51 Application for Orders to Attend

• Draft order for each witness he seeks to have attend the hearing.

• Submissions why the Orders to Attend should be granted for each witness.

[12] On 20 February 2018 my Chambers forwarded to Mr Reguero-Puente a copy of the FWC Practice Note to assist Mr Reguero-Puente prepare and file his application for order to attend and his accompanying submissions.

[13] On 6 March 2018 Mr Reguero-Puente filed what he described as an outline of submissions and a bundle of documents. He did not file any witness statements notwithstanding that the First Directions had been accompanied by a guide to preparing witness statements and outlines of submissions. As Mr Reguero-Puente is self-represented, my Chambers forwarded to him a template outline of argument to assist him prepare and file his witness evidence.

[14] On 9 March 2018 Mr Reguero-Puente filed his outline of argument (Outline of Argument)

[15] On 27 March 2018 Mr Reguero-Puente filed a Form F51 seeking orders that 25 individuals attend the Hearing (Application to Attend) and a draft order for each witness (Draft Orders). He did not file any submissions in support of his Application to Attend other than the following statements contained in the Form F51.

1. Carly Frees - has been nominated as a complainant and provided Witness Statement.

2. Caitlin Logan - has been nominated as a complainant and provided Witness Statement.

3. Schae Haskett - has been nominated as a complainant and can provided a statement. The Respondent remarkably has not called as a Witness.

4. Cassie Strebel - has been nominated as a complainant and provided Witness Statement.

5. Brent Strebel - husband of person four (4) that can provide evidence.

6. Rodney Fielding - New Manager who would be aware of situation and involved with team restructure.

7. Erica Scott - New Coordinator who provided Witness Statement.

8. Katrina Mohsenin - Sent text message regarding 'Black Dog' (reference to depression) before I even reached the doctor's surgery when I fell sick. Has been wanting my position for a long time.

9. Matthew Waters - provided Witness Statement.

10. Taryn Kennedy - Stated as over hearing alleged comments after staff morale workshop.

11. Jerome Abrahams - Has been bullying many staff for many years including myself.

12. Robert Jeans - Director whom [SIC] 'masterminded' the whole restructure and coordinated the complaint process without following City Policies & Procedures.

13. Melinda Wellburn - Personal Assistant to Robert Jeans and can provide evidence.

14. Sharon Peacock - "Friend" and staff member of Robert Jeans who can attest to Robert Jeans' character.

15. Chloe George - Administration officer who can provide evidence on City culture and the discussions on the matter.

16. Angela Pye - Administration officer who can provide evidence on City culture and the discussions on the matter.

17. Simon Morgan - Team member who can provide evidence on what he may have witnessed.

18. Julia Dick - Team member (not within the division) that was on maternity leave and can provide evidence that she and other City employees met for lunch and discussed the confidential matter.

19. Jessica Diggins - Team member (not within the division) that can provide evidence in that I believe she met City employees for lunch and discussed the confidential matter.

20. Mark Dudley - Manager of Building Services before restructure who could attest to the build-up of activities/actions before the new restructure.

21. Ben Searcy - Manager, Human Resources - whom is the Respondent.

22. Andrew Hammond - Chief Executive Officer and Writer of correspondence for termination with fabricated wording.

[16] Section 590 of the FW Act relevantly provides that:

(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:

(a) by requiring a person to attend before the FWC;

[17] Rule 53 of the Fair Work Commission Rules 2013 (FWC Rules) provides that:

(1) 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 to attend before the Commission under subsection 590(2) of the Act.

Note: The request must be in the approved form - see subrule 8(2).

(2) If the order is made, the party who requested the order must, as soon as practicable after the order is made, serve a signed copy of the order upon the person who is required to attend before the Commission."

[18] A person who is ordered to attend a hearing or a party having sufficient interest can request to have an order to attend set aside or varied. The request must be in writing and set out the reasons why the person is seeking to have the order set aside or varied.

[19] Mr Reguero-Puente commenced employed with the City on 5 February 1990. He was employed by the City in a variety of building surveying roles in the Building Services Department (BSD) until his dismissal on 6 December 2017.

[20] At the time of his dismissal, Mr Reguero-Puente was employed in the position of Co-ordinator Building Services in the BSD. The Director responsible for the BSD is Mr Robert Jeans (Mr Jeans). Mr Jeans is also currently the City's Acting Chief Executive Officer.

[21] From 29 July 2016 until 2 September 2016 Mr Reguero-Puente was on paid personal leave following his diagnosis with a mental illness. He returned to work on a part-time basis on 5 September 2016 and returned to full time work on 6 July 2017.

[22] On 12 September 2017. Mr Jeans met with Mr Reguero-Puente and informed Mr Reguero-Puente that a number of female staff members of the City had complained to Mr Jeans that Mr Reguero-Puente had been making comments of a personal nature to them, had sent them unsolicited text messages outside of business hours and had made them feel uncomfortable in his presence.

[23] In a letter dated 10 October 2017, Mr Reguero-Puente was advised that he was suspended on full pay pending the outcome of an investigation into allegations of misconduct.

[24] In a letter to Mr Reguero-Puente dated 13 November 2017, the City provided particulars of nineteen allegations of misconduct by Mr Reguero-Puente (Allegation Letter). These allegations related to Mr Reguero-Puente's interactions with the following City employees:

a. City staff who attended a staff development workshop on 12 October 2017.

[25] An independent investigator, Ms Amanda Nella, was appointed to conduct an investigation into the allegations. The investigator found that all the allegations were substantiated. On 6 December 2017, Mr Reguero-Puente was informed that he was summarily dismissed on the grounds that the allegations had been substantiated and that he had failed to comply with a lawful direction to participate in the investigation process (Termination Letter).

[26] Mr Reguero-Puente has sought orders that the following individuals attend the Hearing:

1. Mrs Merrick

2. Ms Logan

3. Ms Haskett

4. Mrs Strebel

5. Brent Strebel (Mr Strebel)

6. Rodney Fielding (Mr Fielding)

7. Erica Scott (Ms Scott)

8. Katrina Mohsenin (Ms Mohsenin)

9. Matthew Waters (Mr Waters)

10. Taryn Kennedy (Ms Kennedy)

11. Jerome Abrahams (Mr Abrahams)

12. Mr Jeans

13. Melinda Wellburn (Ms Wellburn)

14. Sharon Peacock (Ms Peacock)

15. Chloe George (Ms George)

16. Angela Pye (Ms Pye)

17. Simon Morgan (Mr Morgan)

18. Julia Dick (Ms Dick)

19. Jessica Diggins (Ms Diggins)

20. Mark Dudley (Mr Dudley)

21. Ben Searcy (Mr Searcy)

22. Andrew Hammond (Mr Hammond)

23. Mayor Barry Sammels (Mr Sammels)

24. Terence Devereux (Mr Devereux)

25. Andy Farrant (Mr Farrant)

[27] The following individuals in relation to whom Mr Reguero-Puente has sought an order to attend the Hearing have had witness statements filed on their behalf by the City:

1. Ms Merrick, Building Compliance Officer in Compliance Services Department of the City (until October 2017 part of the BSD).

2. Mrs Strebel, Senior Building Surveyor in the BSD.

3. Ms Scott, Coordinator Health and Building Services in the BSD.

4. Mr Waters, Senior Building Surveyor in the BSD.

5. Mr Jeans, the Director Planning and Development Services and Acting Chief Executive Officer of the City.

6. Ms Logan, Administration Officer - Events and Permits employed in the Health Services Department of the City

[28] In accordance with [19] of the Third Directions these individuals are required to attend the Hearing to be available for cross-examination unless Mr Reguero-Puente notifies the FWC and the City on or before 5 April 2018 that they are not required. It is therefore unnecessary to make further orders for these individuals to attend the Hearing.

[29] Mr Reguero-Puente has sought an order that Ms Haskett attend the Hearing. Ms Haskett was employed at the City in the role of Building Administration Officer in the BSD. The allegations put to Mr Reguero-Puente on 13 November 2017 included allegations relating to Mr Reguero-Puente's interactions with Ms Haskett. Namely, the alleged provision by Mr Reguero-Puente of inappropriate and unsolicited photos to Ms Haskett. It would appear therefore that Ms Haskett could give evidence relevant to the question as to whether the City had valid reasons for dismissing Mr Reguero-Puente. I will grant Mr Reguero-Puente's application for an order that Ms Haskett attend the Hearing.

[30] According to the City's Outline of Submissions. Ms Haskett is currently residing in Ireland and has declined to participate in the proceedings. As with any orders to attend which are issued, the City (in its capacity as a person with interest in these proceedings) and/or Ms Haskett, may apply to have the order for Ms Haskett to attend set aside. Subject to the provision of evidence that Ms Haskett is currently residing in Ireland and is unwilling or unable to participate in the proceedings I will subsequently set aside the order for Ms Haskett to attend. In the event that order is set aside, I will attach appropriate weight to the evidence in relation to Ms Haskett's allegations, given that she will not be available for cross-examination by Mr Reguero-Puente.

[31] Mr Reguero-Puente submits that Mr Brent Streibel should be ordered to attend the Hearing because he is the husband of Mrs Streibel "that can provide evidence". Mrs Streibel has been called as a witness by the City and will be available for cross-examination by Mr Reguero-Puente. Mr Reguero-Puente has not identified any evidence that Mr Streibel might give which would assist me to determination this Application. I therefore do not consider it appropriate to make an order that Mr Streibel attend the Hearing.

[32] Mr Reguero-Puente submits that Ms Mohsenin should be ordered to attend the Hearing because she:

"Sent text message regarding 'Black Dog' (reference to depression) before I even reached the doctor's surgery when I fell sick. Has been wanting my position for a long time."

[33] Whether or not Ms Mohsenin had aspirations for Mr Reguero-Puente's role is irrelevant to the question of whether Mr Reguero-Puente behaved in a manner which was inappropriate and which justified his dismissal. Mr Reguero-Puente has not identified any evidence which Ms Mohsenin might give which would assist me to determine this Application. I therefore do not consider it appropriate to order that Ms Mohsenin attend the Hearing.

[34] Mr Reguero-Puente submits that the following witnesses should attend, primarily, it appears, because of their alleged knowledge of a review and subsequent restructure of the BSD:

"Rodney Fielding - New Manager who would be aware of situation and involved with team restructure.

Robert Jeans - Director whom 'masterminded' the whole restructure and coordinated the compliant process without following City Policies & Procedures.

Mark Dudley - Manager of Building Services before restructure who could attest to the build-up of activities/actions before the new restructure.

Terence Devereux - role unknown in Building Services but believed to be a 'spy' for Robert Jeans and who would be aware of planned restructure.

Andy Farrant - Consultant who would be aware of the planned restructure."

[35] In his Outline of Argument Mr Reguero-Puente says that the review commenced in September 2017, after Mr Reguero-Puente was certified fit to return to work following his mental illness, and after some of the complained of conduct was alleged to have occurred.

[36] Mr Reguero-Puente provides no explanation in the Form F51 as to how evidence with respect to the planned restructure is relevant to the matters to be determined in this Application. Suchwhether Mr Reguero-Puente behaved in the way alleged by the City or whether such behaviour, if it occurred, was a valid reason for his dismissal.

[37] Mr Reguero-Puente makes reference to the restructure in his Outline of Argument but again the link with the question as to whether his conduct formed a valid reason for his dismissal or to any other issue to be determined in these proceedings is unclear. In the event that the restructure is relevant to the determination of the Application, it is unclear why it would be necessary for five witnesses to give evidence on this topic. As Mr Reguero-Puente has identified Mr Jeans as the 'mastermind' of the restructure I am satisfied that Mr Jeans should be in a position to adequately inform me about the restructure, to the extent that it is relevant to the determination of the Application. I am also satisfied that Mr Jeans ought to be able to give evidence in relation to the 'build-up of activities/action' prior to the review. In this context and in the interests of an expeditious determination of the Application I therefore decline to grant orders that Mr Fielding, Mr Dudley, Mr Devereux or Mr Farrant attend the Hearing.

[38] Mr Reguero-Puente seeks an order that Ms Kennedy attend the Hearing on the grounds that she was:

"Stated as overhearing alleged comments after staff morale workshop"

[39] The allegations put to Mr Reguero-Puente on 13 November 2017 included an allegation that Mr Reguero-Puente made comments and behaved in a manner at a staff development workshop held on 12 October 2017 that caused a number of staff to have concerns for their safety. The investigator found that this allegation was substantiated and it subsequently formed one of the reasons for which Mr Reguero-Puente was ultimately dismissed.

[40] According to the witness statements of Mr Waters filed in these proceedings, Ms Kennedy was one of the members of staff who were distressed by Mr Reguero-Puente's comments and behaviours.

[41] It would appear that Ms Kennedy may be in a position to give evidence in relation to the alleged conduct which the City submit forms a valid reason for Mr Reguero-Puente's dismissal. I therefore order that Ms Kennedy attend the Hearing.

[42] Mr Reguero-Puente has sought an order that Mr Abrahams attend the Hearing on the grounds that:

"Has been bullying many staff for many years including myself."

[43] The Application is for a remedy for unfair dismissal, and is not an application for an order to stop bullying. In his Outline of Submissions/Witness Statement, Mr Reguero-Puente states that to the extent that any of his behaviour was inappropriate, that behaviour occurred because he was suffering from bipolar disorder. He says that the bipolar disorder was triggered by being bullied by other employees of the City and being allocated an unreasonable workload. Whether Mr Reguero-Puente is suffering from bipolar disorder and the possibility of a relationship between that condition and his behaviour in the workplace is a matter for expert medical opinion. The trigger of the bipolar disorder is irrelevant to the claim that it is his medical condition which is the cause of Mr Reguero-Puente's alleged misconduct.

[44] Mr Reguero-Puente has sought an order that Ms Wellburn attend the Hearing on the grounds that she is the:

"Personal Assistant to Robert Jeans and can provide evidence."

[45] Mr Reguero-Puente does not identify what evidence Ms Wellburn could give. She is only briefly mentioned in Mr Reguero-Puente's Outline of Argument. Mr Jeans has been called as a witness by the City and ought to be able to give evidence in relation to those matters to the extent they are relevant to determination of this Application. In the circumstances I am not satisfied that it is appropriate to order Ms Wellburn to attend the Hearing.

[46] Mr Reguero-Puente has sought an order that Ms Peacock attend the Hearing on the grounds that she is a:

"Friend and staff member of Robert Jeans who can attest to Robert Jeans' character."

[47] I am confident that I will be able to make an assessment of Mr Jeans' character based on his written and oral evidence in the context of the other evidence which will be admitted in these proceedings without the need to direct Ms Peacock to attend the Hearing.

[48] Mr Reguero-Puente has sought an order that Ms George and Ms Pye, both Administration Officers, attend the Hearing on the grounds that they:

"...can provide evidence of City culture and the discussions on the matter."

[49] He has also sought an order that Mr Morgan, a member of the Building Services Team, attend the Hearing on the ground that Mr Morgan is a:

"Team member who can provide evidence on what he may have witnessed."

[50] Neither Mr Morgan, Ms George nor Ms Pye are mentioned in Mr Reguero-Puente's Outline of Argument to shed further light on what evidence Mr Reguero-Puente asserts they might give which would be necessary for me to determine this Application that could not be given by the witnesses called by the City. In these circumstances I decline to make an order that Mr Morgan, Ms George or Ms Pye attend the Hearing.

[51] Mr Reguero-Puente has sought an order that Ms Diggins and Ms Dick attend the Hearing on the grounds that they met for lunch and discussed a 'confidential matter'. According to Mr Reguero-Puente, neither Ms Diggins nor Ms Dick are employed within the Building Services Team. Ms Diggins is not mentioned in Mr Reguero-Puente's Outline of Argument. Ms Dick is referred to in Mr Reguero-Puente's Outline of Argument and it therefore appears that the 'confidential matter' Mr Reguero-Puente is referring to is the investigation into his alleged misconduct.

[52] Mr Reguero-Puente has not identified how this information is relevant to the matters which I am required to determine in this Application. In any event, Mr Reguero-Puente, says that he was made aware of the conversation and can thus give evidence of what he believes was discussed. If the City wish to challenge Mr Reguero-Puente's evidence as hearsay, they have leave to file a witness statement on behalf of Ms Diggins or Ms Dick, in which case Mr Reguero-Puente will have an opportunity to cross-examine the relevant witness. I therefore decline to make an order that Ms Diggins or Ms Dick attend the Hearing.

[53] Mr Reguero-Puente has sought an order for Mr Ben Searcy, the City's Manager of Human Resources to attend on the ground that Mr Searcy is the respondent in this matter. However, the City, not Mr Searcy, is the respondent in this matter and in the absence of any other reason how Mr Searcy might assist in informing me about the matters to be determined, I decline to order that Mr Searcy attend the Hearing.

[54] Mr Reguero-Puente has sought an order that Mr Hammond, the Chief Executive Officer of the City, attend the Hearing on the grounds that he:

"Chief Executive Officer and Writer of correspondence for termination with fabricated wording."

[55] Mr Reguero-Puente does not mention Mr Hammond in his Outline of Argument. I note the Termination Letter was signed by Mr Hammond. However, according to the witness statement of Mr Jeans filed in these proceedings, Mr Jeans was the relevant decision maker who determined that Mr Reguero-Puente be dismissed. It is therefore unclear what evidence Mr Reguero-Puente asserts that Mr Hammond can give beyond the content of the Termination Letter which bears Mr Hammond's signature and which has been tendered as an exhibit. In these circumstances I am not satisfied it is necessary for Mr Hammond to attend the Hearing in order for me to determine the Application.

[56] Mr Reguero-Puente has sought an order that Mr Sammels, the Mayor of the City, attend the Hearing on the grounds that he had several discussions with Mr Reguero-Puente and can provide evidence of wrongful staff matters.

[57] Mr Reguero-Puente does not mention Mr Sammels in his Outline of Argument. It is unclear what evidence Mr Sammels can provide which will be relevant to the issues which require determination in this Application. In these circumstances I decline to make an order that Mr Sammels attend the Hearing.

[58] Orders will be issued to give effect to this decision.

[59] A person who is ordered to attend the Hearing or a party having sufficient interest can request to have an order to attend set aside or varied. The request must be in writing and must be filed with the FWC and served on Mr Reguero-Puente by close of business on Thursday 5 April 2018 in order for the request to be determined before the Hearing. The request must set out the reasons why the person is seeking to have the order set aside or varied and be accompanied by any relevant witness or documentary evidence. Any witness evidence should be in the form of a statutory declaration. Any objections to any Orders to Attend which are set aside must be filed by close of business Monday 9 April 2018.

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