Fair Work Act 2009

s.394 - Unfair dismissal

• [1] Mr Scully (Applicant) has made an application under section 394 of the Fair Work Act 2009 ('Act') for an unfair dismissal remedy. By that Application, the Applicant is expressly seeking reinstatement to his position with his former employer, AGL Loy Yang Pty Ltd (Respondent).

• [2] In considering the programming of this matter some weeks ago, I invited the Parties to consider whether they might be seeking orders to produce, on the basis that I did not wish the progress of the matter to be delayed by disputes concerning such orders at a late stage. The Applicant indicated that it wished to make such an application, so arrangements were made for that application to be dealt with. This ultimately resulted in an order being issued in slightly different terms to those in which was initially sought.[1]

• [3] In the course of a further mention on 30 June 2025 to discuss a proposed variation to the timetable and hearing dates and having dealt with that variation, I asked if there were other matters that were required to be dealt with. I was unaware at the time that the Respondent had, earlier that day, made an Application for an Order to Produce and neither party raised it as matter that was required to be dealt with. The proposed Order was an Order directed to the Applicant.

• [4] Consistent with my desire to ensure that matters of this nature do not unreasonably prolong the timetable, I sought the Applicant's views on whether they wished to be heard on the issuing of the order. Upon an indication that the Applicant did wish to be heard, I scheduled a mention for 3 July 2025 with the object of deciding on whether an Order would be issued and terms on which it ought be issued.

• [5] Whilst a decision of this nature is not strictly required to be given in writing[2], I have taken the step of publishing written reasons for my decision to issue an order in this case for three reasons. Firstly, I considered that the matter was finely balanced and warranted further consideration and reflection than was available during the mention on 3 July 2025. Secondly, to inform the parties of my expectations in relation to the handling of objections relating to the inspection of the documents to be produced. Thirdly, because this matter has proceeded thus far as a heavily contested one in which I anticipate the parties are likely to want to consider their rights under section 604 of the Act in respect not only of the final determination but in respect of any interlocutory decision which materially impacts upon their interests.

• [6] The description of the material sought by the order was in the following terms:

Any correspondence or documents (including text messages, emails, letters and voicemails) as between John Scully and any representatives of the MEU or between John Scully and any other person (with exception of any privileged material):

(a) between 24 July 2023 and 11 September 2023 and 8 April 2024 regarding the safety incident that led to the termination of Mr Scully's employment, including but not limited to his response to the allegations against him in relation the incident; and

(b) between 8 April 2024 and 18 November 2024 regarding Mr Scully's intentions, desires or views with respect to continuing in his employment with AGL or ceasing his employment with AGL

• [7] In the course of oral submissions, the Respondent conceded that paragraph (a) above (which I refer to as 'category (a)' hereafter) might be more appropriately described by reference to Mr Scully's recollections of the incident alleged, rather than be conclusionary as to there in fact being an incident that led to his termination.

• [8] The Respondent's position as articulated in its Form F3 response to the Application is, relevantly (and in most basic terms), that the Applicant was terminated for serious misconduct, following an investigation. The valid reason relied on by the Respondent consists of its findings in respect of the Applicant's conduct during an incident on 24 July 2023, coupled with him failing to "acknowledge the potential seriousness of the his actions" or "express contrition". These factors are also said by the Respondent to have led to a loss of trust and confidence in the Applicant. The Respondent contends that the dismissal was not harsh, unjust or unreasonable. The Applicant, who has filed his submissions and witness statements, denies the allegations of misconduct, asserts there was no valid reason and claims the dismissal was harsh (even if there was a valid reason, which is denied). The Applicant has not taken the opportunity in his witness statement to dispute what is alleged in the Respondent's Form F3 with respect to the Applicant giving notice to retire at some point between responding to the investigator's findings and the dismissal, a notice that the Respondent says the Applicant "withdrew" at a later stage. Presumably the issue will be explored in material as the matter progresses.[3]

• [9] The power to issue an order to produce, and the authority upon which Rule 16 (and, consequentially) Form F52 expressly rest, is section 590(2)(c) of the Act. The discretionary power therein to issue an order to produce has conventionally been applied by reference to principles applied by courts exercising powers to issue subpoenas, or to set them aside. I am unaware of any authority examining whether the fact that the discretionary power to issue an order to produce rests on the Commission reaching a view about how it considers it should inform itself implies that any different approach ought to be taken. I am prepared to accept that the Commission's general obligations in section 577 and 578 of the Act and the concomitant requirement to allow the parties an opportunity to present their case interact with section 590(2)(c) of the Act in a manner that is structurally similar to the interaction between the subpoena powers of Courts that are subject to an "Overriding Purpose" in the exercise of the functions and powers in civil matters[4], albeit the that the purpose itself here is different.

• [10] Broadly stated, the applicable principles require that the documents sought to be produced have an apparent or potential relevance to the issues in the proceedings[5], in the sense that there is a legitimate forensic purpose in seeking the documents[6]. This is to be established on the basis of how the parties have put their case, rather than in the abstract[7] and is distinct from a "fishing expedition"[8]. A "fishing expedition" is a situation whereby a party seeks documents to explore whether there is a basis for a case that might potentially be advanced, rather than for a purpose which is intended to be advanced[9] (for example, in an effort to discover a valid reason for termination arising out of particular events where none has been alleged in respect of those events[10]). The documents which are sought need to be described with sufficient particularity, not leave the person subject to the order in doubt as to the whether the documents are relevant[11] and the order must not be oppressive to comply with.[12] The discretion that the Commission exercises is a wide one, and issues of fairness and procedure need also be balanced, including with regard to the privacy of the person to whom the order may be directed.[13]

Should any of the documents be required to produced?

• [11] In support of category (a), the Respondent submits that "valid reason" is in issue in the proceedings, and it is of apparent relevance to examine the Applicant's inconsistent statements or admissions (or possibly consistent statements) about his recollection of events on the day when the alleged incident occurred. The Applicant is of the view that it is the Respondent's task to establish a valid reason, and they have already formed a concluded position on that matter sufficient to persuade itself that it was appropriate to terminate the Applicant.

• [12] Having had some time to reflect on the parties' positions, I consider it is appropriate that an order be made to capture at least some of the material the Respondent seeks. The Applicant does not have the benefit of a privilege against self-incrimination or self-exposure to a penalty in this matter, so there is no overriding reason why he ought not be compelled to personally produce material that is against his interest where relevant to matters that are, on the face of the materials, in contest. As would be apparent from the summary at paragraph [8] above, what is in contest is not just whether the Applicant acted in a particular way during the alleged incident of misconduct, but also whether he appreciated the seriousness of those actions and was contrite about them. That is, the Respondent has already positioned itself in its Form F3 to pursue an argument that the Applicant was deliberately dishonest during the investigation about what occurred during the incident in question, rather than simply being mistaken in his recollections. I consider it would be wrong for the Respondent to be prevented from pursuing that argument through an order to produce, even if such pursuit may ultimately prove unhelpful to its case. I should add that I am satisfied that this material is relevant not only to the liability issue, it is also relevant to the issue of remedy insofar as the impliedly alleged dishonesty is said to be reason for a collapse in trust and confidence which might lead to a reinstatement not being considered appropriate. I do not consider pursuing this line of argument through an order to produce as a fishing expedition and I have had particular regard to the analysis of Lindgren J in Trade Practices Commission v.[14]C & Ors14 that was brought to my attention in this regard.

• [13] I do however draw a line on relevance concerning communications made to the Applicant. It is not apparent how communications by third parties to the Applicant about his own recollections are relevant in any sense. Accordingly, subject to what I say below I am prepared to issue an order in which category (a) is expressed as follows:

between 24 July 2023 and 11 September 2023 and 8 April 2024 regarding his recollections of the events referred to in the allegations the subject of the Respondent's investigation.

• [14] Cateogry (b) is pressed by the Respondent on the basis that is relevant to the question of remedy, this being a case in which the Applicant is actively seeking reinstatement. As noted above, the Respondent's position is that the Applicant gave notice of an intention to retire after the investigation had been commenced but prior to the dismissal being implemented, a notice that was later withdrawn. I have difficulty accepting that the category (b) is apparently relevant in that regard. At its fullest, the remedy of reinstatement in section 391 of the Act is directed to placing an applicant so far as possible in the position they would have been had the dismissal not occurred. To my mind, this includes the preservation of the right to resign (or retire) at a time of an applicant's choosing, subject to the relevant notice being given. I am however satisfied that the apparent relevance of this material arises as an incident of Applicant's case that his dismissal was harsh. Whether the dismissal was harsh, or how harsh it was, might rationally be informed to some degree by evidence about how long it was the Applicant wished to remain in employment with the Respondent. As was the case with category (a), I see no relevance in respect of communications to the Applicant concerning his views about continuing or ceasing his employment.

• [15] Obviously, the issue of the weight of any evidence concerning the Applicant's intentions in the period inquired of in category (b), in circumstances where the dismissal did not occur until March of the following year and the Applicant sought advice on filing an unfair dismissal claim, is a further consideration. Whilst it may be appropriate to refuse the order on the basis that I do not consider the material sought will be informative on the issues the Commission is required to decide, in this instance I believe the more preferable course is to deal with the issue of weight should any concrete material be in fact relied on at the hearing in relation to which that issue arises for consideration. Subject to what I say below, I do not propose to make any refinements to narrow category (b).

• [16] As noted at paragraph [6] above, categories (a) and (b) were preceded with a chapeau that identified the "correspondence or documents (including text messages, emails, letters and voicemails) as between John Scully and...". I consider it is less apt to confuse the Applicant if the target is described as "documents that are communications (including text messages, emails, letters and voicemails)". The Respondent was willing to provide the exclusion "with the exception of any privileged material" and I see no reason not to retain it. I will avoid the duplication in specifically referencing communications to "any other person" in addition to "any representatives of the MEU". Having regard to what I have said above, I intend to confine the chapeau to communications emanating from the Applicant, rather than to him.

• [17] The above leads to the conclusion that I am prepared to issue an order that would relevantly provide for production of the following:

Documents that are communications (including text messages, emails, letters and voicemails) from John Scully to any other person (with exception of any privileged material):

(a) between 24 July 2023 and 11 September 2023 and 8 April 2024 regarding his recollections of the events referred to in the allegations the subject of the Respondent's investigation; and

(b) between 8 April 2024 and 18 November 2024 regarding Mr Scully's intentions, desires or views with respect to continuing in his employment with AGL or ceasing his employment with AGL

• [18] As with the previous order issued in this matter, the order I am prepared to issue would permit electronic production. The return date would be 14 days from issuance, reflecting the ultimate position of the parties at the mention.

• [19] A draft order has been prepared in the above terms, but I will not issue it unless and until my chambers receives confirmation for the Respondent that it would still wish for an order in these more confined terms to be issued.

• [20] For the avoidance of doubt, my decision in respect of the application before me is not intended to foreclose the parties' rights to examine additional matters by way of any further order to produce and I recognise that the filing and service of the Respondent's material may be a catalyst for a further application.

• [21] In the course of the mention, there was some discussion of the potential for some documents to either attract legal professional privilege or be inappropriate to produce on account of them revealing internal deliberations of the Union,[15] or disclose the substance of settlement negotiations. The latter two are not categories of privilege as such but nonetheless can mean a document produced to the Commission is ultimately not made available for inspection by the parties.

• [22] Based on the terms of the chapeau, documents that are the subject of legal professional privilege are not required to be produced at all. Documents dealing with the seeking of advice from the Union or deliberations within the Union, or dealing with settlement negotiations, are required to be produced, but the Applicant may object to their inspection. To that end, the proposed order will provide a mechanism for documents to which an objection is taken to be clearly identified and require a schedule of particulars of objections taken to be submitted. I will then determine whether each objection is to be upheld.

[1] PR788391.

[3] See Birrell v. Australian National Airlines Commission [1984] FCA 378.

[4] See Civil Procedure Act 2010 (VIC), s. 7; Civil Procedure Act 2005 (NSW), s. 56, Suzhou Haishun Investment Management Co Ltd v. Zhao [2018] VSC 144 at [100]- [101].

[5] UFU v. CFA [2023] FWC 1118 at [21], Wright v. AGL Loy Yang [2015] FWC 8820 at [9]- [10].

[6] Suzhou Haishun Investment Management Co Ltd v. Zhao [2018] VSC 144 at [99].

[7] UFU v. CFA [2023] FWC 1118 at [24].

[8] AMWU v. Acciona M&E [2024] FWC 2780 at [54].

[9] UFU v. CFA [2023] FWC 1118 at [21], Wright v. AGL Loy Yang [2015] FWC 8820 at [9]. See also Dorajay Pty Ltd v. Aristocrat Leisure Ltd [2005] FCA 588 at [34].

[10] Faulkner v. BHP Coal Ltd [2014] FWC 5134 at [17]- [24].

[11] Suzhou Haishun Investment Management Co Ltd v. Zhao [2018] VSC 144 at [99].

[12] UFU v. CFA [2023] FWC 1118 at [21].

[13] Faulkner v. BHP Coal Ltd [2014] FWC 5134 at [22]- [23].

[14] [1995] FCA 1418 at [49]- [54].

[15] AMWU v. Acciona M&E [2024] FWC 2780 [57]-[83]. See also Re Bakery Employees' and Salesmens' Federation of Australia, AIRC Print K2056, 6 March 1992.

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