Fair Work Act 2009

s.394 - Unfair dismissal

Application for relief from unfair dismissal - Application to set aside Order to Attend.

[1] This decision concerns an application by the City of Rockingham (City) to set aside an order requiring Ms Schae Haskett (Ms Haskett) to attend the Fair Work Commission (FWC) to give evidence at the hearing of an unfair dismissal remedy application (Application) made by Mr Colin Reguero-Puente (Mr Reguero-Puente).

[2] The Application 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 the Application (Hearing).

[3] On 27 March 2018 Mr Reguero-Puente filed a Form F51 seeking orders that 25 individuals attend the Hearing (Applications to Attend). Despite being directed to do so, he did not file any submissions in support of the Applications to Attend. His grounds for the Applications to Attend can only be ascertained from brief statements contained in the Form F51.

[4] In relation to Ms Haskett the only ground which Mr Reguero-Puente identified for his application that she be ordered to attend the Hearing was:

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

[5] On 3 April 2018 for the reasons set out in [2018] FWC 1926 (Decision) orders to attend the Hearing were issued in relation to Ms Haskett (Print 601696) and Ms Taryn Kennedy (Print 601696).

[6] The grounds for the granting of an order that Ms Haskett attend the Hearing was set out at [29] of the Decision as follows:

"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."

[7] In issuing the order that Ms Haskett attend the Hearing it was noted at [30] of the Decision that:

"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."

[8] On 4 April 2018 the City made an application that the order that Ms Haskett attend the Hearing be set aside (Application to Set Aside). As a person with interest in these proceedings I am satisfied that the City has standing to make the Application to Set Aside. The Application to Set Aside was accompanied by an exchange of correspondence between a representative of the City and Ms Haskett in which Ms Haskett indicated that:

• She plans to remain in Ireland for the foreseeable future.

• Her involvement with Mr Reguero-Puente and the investigation into his conduct has caused her severe anxiety.

• This anxiety caused her to resign from her employment from the City and leave Australia.

• She is unwilling to participate in the proceedings.

[9] The possibility of giving evidence by telephone was raised with Ms Haskett and notwithstanding that the giving of her evidence might be achievable by telephone she still declined to participate in the Hearing.

[10] In the Decision Mr Reguero-Puente was invited to file any submissions in relation to any application to set aside the order that Ms Haskett attend the Hearing, by close of business on Monday 9 April 2018.

[11] Mr Reguero-Puente sent an email to Chambers on 4 April 2018 which contested various elements of the Decision. In relation to the Application to Set Aside he submitted that:

"I am not sure as to how Ms Haskett can have an Order set aside purely on the basis that she is 'unwilling' to participate in proceedings. Based on that theory, ALL complainants/witnesses could demonstrate same. Ms Haskett's allegations are crucial to the whole chain of events and a critical component of her allegations is false being the allegation she sent a photo of her vagina to myself."

[12] In a subsequent email filed on 5 April 2018 he contested whether Ms Haskett left the country to avoid him and notes that he is also suffering anxiety. He concluded that the attendance of Ms Haskett at the Hearing is "...critical as the Respondent's star witness".

[13] I do not propose to set aside the order that Ms Haskett attend the Hearing purely on the basis that she is unwilling to attend the Hearing.

[14] The uncontested evidence before me is that Ms Haskett is currently located in Ireland. In his submissions opposing the Application to Set Aside Mr Reguero-Puente has not addressed the capacity of the FWC to compel a witness who is not located within an Australian jurisdiction to return to Australia to give evidence in person or to give evidence remotely by telephone or video link.

[15] The uncontested evidence before me is also that Ms Haskett's involvement in the proceedings is likely to cause her significant distress. The City have filed a copy of the report prepared by the independent investigator engaged by the City to conduct an investigation into the allegations of misconduct by Mr Reguero-Puente that ultimately led to his dismissal (Report). It is alleged that Mr Reguero-Puente sent Ms Haskett a number of photos of himself naked and semi-naked. It is also alleged that Ms Haskett sent one photo to Mr Reguero-Puente of herself undressed. According to the Report Ms Haskett told the Investigator that she only did so after repeated and persistent requests by Mr Reguero-Puente and only because she felt compelled to do so because she held a subordinate role to Mr Reguero-Puente. The Investigation Report also reveals that Ms Haskett reported that her relationship with her partner broke down when he became aware of the messages Mr Reguero-Puente had sent her. Given the highly personal nature of the matters about which she might be examined, Ms Haskett's anxiety in relation to participation in the proceedings is no doubt far more significant that the normal anxiety of witnesses involved in litigation.

[16] Unlike Mr Reguero-Puente, who has chosen to commence these proceedings, Ms Haskett has become embroiled in the litigation by no choice of her own after being directed by her employer to participate in an investigation process.

[17] The grounds upon which Mr Reguero-Puente was dismissed include nineteen separate allegations (some of which involve alleged multiple examples) of misconduct by Mr Reguero-Puente. Ms Haskett was the subject of only two of the nineteen allegations. The City has filed witness statements by four other women who are the subject of fifteen of the other nineteen allegations. It is apparent from the materials filed by the City that Ms Haskett is by no means the City's 'star witness' as asserted by Mr Reguero-Puente.

[18] The City has not filed a witness statement from Ms Haskett and therefore do not seek to rely on witness evidence from her. As foreshadowed in the Decision I will attach appropriate weight to any evidence in relation to Ms Haskett's allegations, given that she will not be available for cross-examination by Mr Reguero-Puente.

[19] In light of all the circumstances I have decided to aside the Order in Print 601696 that Ms Haskett attend the Hearing. An Order (Print 601942) will be issued with this decision.

Printed by authority of the Commonwealth Government Printer