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[2019] FWC 4557
General information, not legal advice.
Fair Work Commission
2019-07-02
Original judgment source is linked above.
The attached document replaces the document previously issued with the above code on 2 July 2019.
The reference in paragraph [3] to the further hearing dates has been corrected.
s 789FC - Application for an order to stop bullying
Application for an FWC order to stop bullying - numerous notices to produce - proceedings part heard - principles considered - documents either already produced or do not exist - applicant may inspect Commission file - notice to produce Commissioner's notes refused - notice to produce to third parties - no documents with FWO - computer analysis is unrelated to stop bullying application - computer analyst's report relates to employer's concern with improper use of business records - applications granted in part - notices to produce otherwise set aside.
[1] On 24 June 2019, Ms Kelly Walker, the applicant in this stop bullying order application, lodged with the Fair Work Commission (the 'Commission') several interlocutory applications (most of which were later corrected for irregularity) seeking orders for the production of documents in respect to her substantive stop bullying application, which has been the subject of two days of hearing in Newcastle on 21 and 22 May 2019 and is part heard.
[2] To understand the basis of these applications for Notices to Produce, it is necessary to give some context in which they are sought. When the applicant's evidentiary case had concluded, and three witnesses had given evidence in the respondents' case, Mr David James, the applicant's support person speaking on behalf of her in the proceedings, at 3:55pm on the second day, sought to tender a covert recording, obtained by the applicant of a meeting she had with Dr Russo, one of the named respondents in the matter, and the applicant's employer. The tender of the recording was opposed by Ms C Dowling, Solicitor for the respondents on a number of bases, including that the recording had been illegally obtained under the Surveillance Devices Act 2007 (NSW) No 64.
[3] In order for the Commission to determine whether to admit the recording into evidence, I issued directions for the filing of submissions on the issue. The applicant filed submissions on 17 June 2019 and has now filed these Notices to Produce. It is apparent from the Notices that the documents sought are in large measure, related to the admissibility of the recording, which is obviously a matter for determination at another time, after all the Commission's directions are complied with. The substantive matter is relisted for further hearing on 22 and 23 July 2019.
[4] In summary, the applicant seeks Notices to Produce orders against:
General Manager, Fair Work Commission and Commissioner McKenna;
The Proper Officer, Anti Bullying Team, Fair Work Commission;
Ian Morrison, Case Manager, Fair Work Commission;
Fair Work Ombudsman;
Range Information Systems ('Range') (third party); and
MCAA Australia ('MCAA') (third party).
[5] The applications were listed for hearing on 1 July 2019. Mr James appeared for and with the applicant, Ms Dowling appeared for the respondents and Mr T Sager appeared for Range.
[6] In many cases, interlocutory decisions on applications of this kind do not require written reasons of the decision maker; see: s 601 of the Fair Work Act (the 'Act') and the Explanatory Memorandum to the Fair Work Bill 2008. Indeed, I have already ruled on a number of earlier Notices to Produce (and Notices to Attend) in that way, and my Chambers has engaged with the parties on numerous occasions by email about procedural matters. However, on this occasion I consider it appropriate to publish a formal decision, although given the timing, these reasons may not be as elaborate or complex as might ordinarily have been the case, had more time been available.
[7] Applications of this kind are made under s 590 of the Act, which relevantly provides as follows:
'(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:
(c) by requiring a person to provide copies of documents or records, or to provide any other information to the FWC'.
[8] The Fair Work Commission Rules 2013, provide that 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 provide copies of documents or any other information to the Commission.
[9] In a recent Full Bench decision, the Commission set out the principles applying to the issue of orders for production under s 590(2)(c) of the Act. In Kennedy v Qantas Ground Services Pty Ltd t/a Qantas Ground Services Pty Ltd, Qantas Group [2018] FWCFB 3847 ('Kennedy'), the Full Bench said at [23]:
'The power conferred by s.590(2)(c) is a discretionary one to be exercised for the purpose of the Commission informing itself as to a matter before it. The Commission will be guided in the exercise of its discretion by the practice followed by courts in civil proceedings when issuing subpoenas. 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.' (footnotes omitted)
[10] In an oft quoted passage from Clerks (Alcoa) Case (1988) Print H2892, Munro J at [2] said:
'A party will not be required to produce documents where to do so would be oppressive; or where the demand for production is a "fishing expedition", in the sense that it is an endeavour not to obtain evidence to support a case, but to discover whether there is a case at all. Where the proper use of legal compulsion to produce documents is in issue, the tribunal will need to carry out an exercise of judgment upon the particular facts in each case. That judgment requires a balance on the one hand of the reasonableness of the burden imposed upon the recipient, and of the invasion of private rights, with on the other hand, the public interest in the due administration of justice and in ensuring that all material relevant to the issues be available to the parties to enable them to advance their respective cases'.
I shall deal with the matters in the order they were considered in the hearing.
[11] The Notice to Produce to the Fair Work Ombudsman (the 'FWO') included the following:
'a. For the period from 1 January 2017 to Ms Walker's last day at work on 27 March 2018 all digital files, emails, notes, letters, documents and meeting minutes in relation to the any contact between the Applicant and the Respondents and Fair Work, the Fair Work Ombudsman, Anti-bullying at Fair Work and/or held by Fair Work.
As we mentioned in 2 previous emails we are seeking the entire balance of all of Fair Work's departments' (sic) file and in particular the following please:-
1. Email from Fair Work / anti bullying to Dr Russo on 27 March 2018 addressing Ms Walker being afraid Dr Russo would physically assault her. This is the email Dr Russo mentions in his statement at paragraph 33 that he received from Fair Work at 11.13 am.
2. All file notes of Fair Work, anti bullying or the Ombudsman mentioning any conversations regarding this matter between 1 January 2017 until 31 July 2018.
3. All emails between Fair Work or anti bullying and parties of this matter between 1 January 2017 until 31 July 2018.
4. In addition the File notes from the Teleconferences held by Commissioner McKenna.'
[12] On 28 June 2019, having been provided with the draft order, the FWO responded as follows:
'We understand the request is for all documents held by the FWO from the period 1 January 2017 and 27 March 2018 regarding contact between Ms Walker (the Applicant), Respondents (Dr Marc Russo Pty Ltd t/a Hunter Pain Clinic, Ms Kay Gray and Dr Marc Russo), the Fair Work Ombudsman and the Fair Work Commission. We understand the documents sought are limited to Ms Walker's former employment with the respondents.
The FWO has conducted searches of our systems and has not identified any documents within the scope of the request. The FWO is disclosing this information to the Fair Work Commission in accordance with subsection 718(2)(b) of the Fair Work Act 2009.
As the FWO has not identified any relevant documents, we are assuming that any attendance by an officer of the FWO at the telephone hearing on 1 July 2019 is now unnecessary. We would be happy for a copy of this email to be provided to the parties to the hearing in lieu of any attendance.'
Accordingly, I set aside the Notice to Produce to the Fair Work Ombudsman.
[13] In Trade Practices Commission v Arnotts Limited (No 2) [1989] FCA 248, Beaumont J dealt with a challenge to a subpoena issued to a third party, namely Mattingly. His Honour said:
'42. The general test for present purposes is well settled. The issue of a subpoena will be an abuse of process if it is not used for a legitimate forensic purpose (see Botany Bay Instrumentation and Control Pty. Ltd. v. Stewart (1984) 3 NSWLR 98 at pp 100-1). But, as Deane and Gaudron JJ. observed in Hamilton v. Oades [1989] HCA 21; (1989) 85 ALR 1 (at p 11); the Court's general powers in this area have a dual aspect:
"The inherent power of a court to control and supervise proceedings includes the power to take appropriate action to prevent injustice...(This) power...is not restricted to defined and closed categories...In this context injustice is not simply a question of the purpose or motive for which the relevant proceedings were instituted but includes a consideration of the consequences of the proceedings for the person invoking the power. The terms 'oppressive' and 'vexatious' are often used to signify those considerations which justify the exercise of the power to control proceedings to prevent injustice, those terms respectively conveying, in appropriate context, the meaning that the proceedings are 'seriously and unfairly burdensome, prejudicial or damaging' and 'productive of serious and unjustifed trouble and harassment': Oceanic Sun Line Special Shipping Co Inc v. Fay [1988] HCA 32; (1988) 62 ALJR 389 per Deane J at 411; [1988] HCA 32; 79 ALR 9 at 45."
43. In other words, the present inquiry is not limited to an analysis of the true purpose of Arnotts in procuring the issue of the subpoena. It is also material to look at the impact of the subpoena upon Mattingly.
44. Without restricting this inquiry, it is convenient to address the present application in the first instance by reference to two questions: (1) Does the material sought have an apparent relevance to the issues in the principal proceedings, i.e., is adjectival, as distinct from substantive, relevance established? Does the subpoena have a legitimate forensic purpose to this extent? This involves a consideration of the matter from the standpoint of Arnotts. (2) Is the subpoena seriously and unfairly burdensome or prejudicial? This is to look at the matter from the point of view of Mattingly.'
[14] The Notice to Produce sought the following:
All digital files, emails, notes, letters, documents, reports, findings and meeting minutes in relation to surveillance information and Hunter Pain Clinic or any of its employees ordering and receiving a surveillance report by Range Information Systems on Ms Walker's work computer held by the Respondents and all communications between any employee of Hunter Pain Clinic including Kay Gray and Marc Russo and Range Information Systems.'
[15] Range is Hunter Pain Clinic's (one of the named respondents) IT Management Company. Mr T Sager appeared for Range and said he had found two documents relevant to the order. However, subject to the documents being considered by the client as confidential, he would be able to produce the documents. I directed Mr Sager to liaise with his client and Ms Dowling to advise my Chambers if any issues of confidentiality arise. I was subsequently advised that neither the respondents nor Mr Sager have any issue with producing the documents. I grant to the order sought.
[16] The Notice to Produce to MCAA Australia Pty Ltd was as follows:
All digital files, emails, notes, letters, documents, reports, findings and meeting minutes in relation to surveillance information and Hunter Pain Clinic or any of its employees ordering and receiving a surveillance report by MCAA Australia Pty Limited, Computer Forensics Expert & Investigation on Ms Walker's work computer held by the Respondents and all communications between any employee of Hunter Pain Clinic including Kay Gray and Marc Russo and MCAA.'
[17] MCAA Australia is a forensic computer analyst and was engaged by Hunter Pain Clinic to examine the work computer used by Ms Walker, as the respondents had concerns that Ms Walker may have been obtaining, storing or sending confidential information outside the business. It prepared a report (the 'MCAA Report') which the applicant was made aware of on 2 May 2019.
[18] Ms Dowling submitted this was entirely inappropriate and prejudicial given the applicant's evidentiary case has ended, and in circumstances when she was aware of this report on 2 May 2019, yet had never asked for a copy of it. Ms Dowling claimed that this was not a matter of workplace surveillance and had nothing to do with the present case. It related to the possibility of Ms Walker being engaged in inappropriate conduct and the employer was entitled to ensure the security of its business records. Mr James submitted that this went to the heart of the bullying against Ms Walker and constituted further examples of bullying by the respondents.
[19] In my view, this category of documents has nothing to do with the case presently before the Commission. Allegations of breaches of other Acts and vague allegations of other illegalities are not matters relevant to the case before the Commission. Given Ms Walker has identified 39 incidents of alleged bullying, I am concerned that this level of document hunting is becoming more like a case of requesting documents to see if there is a case, not requesting documents relevant to the case. This is impermissible under the principles earlier referred to; see: [9] above.
[20] It must also be pointed out, that the work computer used by Ms Walker and the documents created or stored on it, are not the property of Ms Walker. An employer is perfectly entitled to seek to protect its confidential material and all documents generated by, or stored on its own software. It is equally entitled to commission an expert to establish if its confidentiality, viability or reputation is believed to have been compromised and take action if it considers this has occurred. It may be assumed that the respondent was concerned of a breach by the applicant of Clause 9 of her contract of employment, dated 26 October 2016.
[21] I would stress that disciplinary action taken in this context could not be considered bullying and, as is often the case, the two processes may interact; that is, a disciplinary process is instituted which itself is claimed to be bullying. I set out the distinction in Karki [2019] FWC 3147 at [66]:
'[66] In my opinion, it is not acceptable to use the stop bullying jurisdiction of this Commission as a shield or stalking horse, to prevent, delay or deflect justifiable disciplinary outcomes, or to claim that the disciplinary outcomes themselves are repeated unreasonable behaviour, constituting bullying. It demeans and undermines the important work of the Act's stop bullying provisions to prevent workplace bullying. On one view, such conduct might be said to be perilously close to an abuse of process.'
[22] That being said, and despite some reluctance, I am prepared to agree to the production of the MCCA Report. Whether it is ultimately relevant will be a matter of submissions and, if necessary, the recall of witnesses. The Notice to Produce is otherwise set aside.
Notices to Produce directed to the Commission's General Manager and the Anti-Bullying Team seeking copies of all documents, including emails from Ian Morrison set out in notice schedules and notes of Commissioner McKenna
[23] It is convenient that I deal with these three Notices to Produce concurrently. As demonstrated by the applicant's own recital of the documents she has been provided, and/or would otherwise have in her own possession, it seems the applicant remains unconvinced that all of the documents have been provided to her, particularly in respect to email communications of 27 March 2018. The applicant has already been twice advised that if she remains concerned that she does not have all of the communications between the Commission and all of the parties, she may request access to the full file in Matter AB2018/160. She has chosen not to make that request.
[24] However, it seems to me that the best answer to her concerns is for her to view the complete file and make requests for copies of any documents she claims not to have. There is nothing more the Commission can do if the applicant continues to assert that other documents exist. I will not entertain any further requests in this regard.
[25] Accordingly, I direct the Director Case Management - Client Services Delivery NSW arranges to upload from the Commission's records a complete copy of the file in Matter AB2018/160 and provide it to the applicant by close of business Thursday 4 July 2019. Given these directions, I set aside the orders for production directed to the General Manager, Fair Work Commission, and Mr Ian Morrison and the Anti-Bullying Team.
[26] The applicant seeks copies of any file notes from the teleconferences held by Commissioner McKenna. This request can be answered by reference to the Full Bench decision in Kennedy in which a Notice to Produce was issued by the applicant in that case seeking the file notes taken by Deputy President Kovacic in an unfair dismissal conference, which had not been recorded. The Full Bench said at [57]-[61]:
'[57] The DP Notes are internal working documents taken by a decision-maker that were created as part of the deliberative process.
[58] The DP Notes are immune from production because of the protection and immunity conferred by s.580 of the Act upon Members of the Commission.
[59] Section 580, entitled 'Protection of FWC Members', provides:
'An FWC Member has, in performing his or her functions or exercising his or her powers as an FWC Member, the same protection and immunity as a Justice of the High Court.'
[60] The Explanatory Memorandum accompanying the Fair Work Bill 2008 states in respect of the immunity:
'FWA is an independent statutory agency. To enhance the independence of FWA Members and provide them with freedom to make decisions, clause 580 provides that an FWA Member has the same protection and immunity as a Justice of the High Court in performing his or her functions or exercising his or her powers, including immunity from suit and immunity against the disclosure of certain information.'
[61] In respect of the scope of the 'protection and immunity' accorded to a Justice of the High Court, it is well-established that the 'protection or immunity extends to protection from compulsory disclosure of any aspect of the decision-making process.' (footnotes omitted)
[27] It is pertinent to note that in this case (unlike in Kennedy) the teleconferences convened by the Commissioner were all recorded. The applicant has sought and was granted access to the audio recordings based on her claim that the Commissioner was 'outraged' with the respondent's lawyer for sending a settlement offer to her and issued directions that this not occur in the future. I have listened to the audio recordings and it is abundantly plain the Commissioner was neither outraged, nor did she issue any directions in respect to the matter. In fact, she explained that offers of settlement are frequently made in such matters and the applicant should seriously consider resolving a very difficult working relationship.
[28] In any event, it could hardly be said that the Commissioner's notes (assuming there are any) are relevant when:
(a) the applicant has access to the audio recordings of unexceptional and cordial conciliation conferences with a Member, who displayed considerable sympathy for, and empathy with the applicant's alleged medical condition; and
(b) the Commissioner no longer has any involvement in the matter.
The request of an order in respect to the Commissioner's notes, is no more than an irrelevant 'fishing expedition'.
[29] Accordingly, I decline to make the order sought.
[30] The Notice to Produce to the respondents was as follows:
'a. The entire personnel file for Kelly Walker held by the Respondents.
All digital files, emails, notes, letters, documents, reports, findings and meeting minutes in relation to the surveillance information and Hunter Pain Clinic ordering and receiving a surveillance report by MCAA Australia Pty Limited, Computer Forensics Expert & Investigation on Ms Walker's work computer held by the Respondents and all communications between any employee of Hunter Pain Clinic including Kay Gray and Marc Russo to MCAA.
d. All digital files, emails, notes, letters, documents and meeting minutes in relation to any contact between Fair Work, The Fair Work Ombudsman and Anti-bullying at Fair Work and Safe Work and Hunter Pain Clinic in relation to Ms Walker held by the Respondents.'
[31] Given my earlier conclusions, the response from Range (Order (c)) and my decision to permit the production of the MCAA Report (Order (b)), there are no other matters in the Notice to Produce to the respondents which require attention. As the respondents' vigorously deny that the engagement of MCAA Australia was not workplace surveillance (a view, I must say I find at least, arguable), there would be no documents relevant to the compliance or otherwise with the Workplace Surveillance Act. The applicant's personnel file (Order (a)) has already been produced. Order (d) is covered by my decision at [25].
[32] The Notice to Produce directed to the respondents is set aside.
[33] Finally, I note Mr James' advice at the conclusion of the telephone hearing that this 'finalises all our requests'.
Printed by authority of the Commonwealth Government Printer
(1984) 3 NSWLR 98
(1989) 85 ALR 1
(1988) 62 ALJR 389