s.365 - Application to deal with contraventions involving dismissal (consent arbitration)

Independent Broad-Based Anti-Corruption Commission

Application to deal with contraventions involving dismissal - consent arbitration; application for an order to produce documents; application granted in part

• [1] Ms Erica Duncan has made an application pursuant to s 365 of the Fair Work Act 2009 (the Act) for the Commission to deal with a dismissal dispute, claiming that her dismissal by the Independent Broad-Based Anti-Corruption Commission (IBAC) was in contravention of Part 3-1 of the Act.
• [2] The parties have agreed for the Commission to arbitrate the dispute pursuant to s 369 of the Act.
• [3] Ms Duncan has filed an application pursuant to s 590 of the Act seeking an Order for the production of documents. The application was filed on 8 April 2025 and later amended, and, after exchanges between the parties, further refined. Much of the material sought by Ms Duncan has been provided by IBAC and thus it is not necessary for an Order to be made in respect to a number of the categories of documentation sought. However, in respect of other categories, IBAC opposes the making of an Order to produce.

• [4] On 16 April 2025, I provided the parties with a summary of what I understood to have been sought by Ms Duncan's application and the status of each of those categories of documents. There were twelve items, set out below. A thirteenth - a non-disclosure document - was later provided to Ms Duncan by IBAC. The twelve items are:
  1. Email containing details of grievances and complaints, dated 7 January 2025, from the Applicant to Michael Trott, Sarah Goodhart, and Orhan Pek.
  2. The IBAC Incident Management and Reporting Policy.
  3. Ivanti Neurons Ticket Reports with the following data:
     1. A report covering the period 15 November 2024 to 14 January 2025, detailing the number of IT tickets resolved and closed by Amanda, Lucas, and Erika.
     2. A report covering the 12-month period from January 2024 to January 2025, detailing the number of IT tickets resolved and closed by each service desk team member.
     3. A report containing the data on the number of tickets reassigned from Lucas to Amanda and from Erika to Amanda covering the period January 2024 to January 2025
  4. All MS Teams chat logs and emails between the Applicant and Michael Trott, for the period 15 November 2024 to 14 January 2025.
     1. Specifically, the email titled ""Amanda - Ticket Coaching." As referenced under the heading "Background" in the doc supplied by IBAC titled "Briefing Note Approving Termination of Employment.pdf"
  5. Notes taken by Orhan Pek during a one-on-one private meeting with the Applicant on 7 January 2025, at the IBAC office.
  6. All MS Teams conversations between Anthony De Luca and the Applicant.
  7. All correspondence, including emails, meeting notes, and documents relating to complaints made by the Applicant and IBAC's handling of those complaints.
  8. All documents, emails and correspondence relating to the Applicant's dismissal including the reason/s the applicant was dismissed.
  9. All email correspondence between Sarah Goodhart and the applicant.
  10. Nicole Baker's Meeting Notes from 14 January 2025 and MS Teams Chats with the Applicant.
  11. All notes from 7 January 2025 Meeting with Michael Trott, Sarah Goodhart, and Orhan Pek including the meeting invite.
  12. The notes regarding Ivanti Neurons ticket number, 15234 raised 26/11/2024). As referenced under the heading "Background" in the doc supplied by IBAC titled "Briefing Note Approving Termination of Employment.pdf"
• [5] Ms Duncan has since confirmed through the exchanges between the parties and provision by IBAC of various documents, that items 1, 2, 5, 8, 9, 10, 11 and 12 are now resolved.

The nature of the opposition to the production of the remaining items

• [6] IBAC has been afforded several opportunities to outline the nature of its opposition to the production of these items to which it objects. Its most recent submission was made on 1 May 2025. In summary its objections are as follows:
  1. Item 3 is reports about "Ivanti Neurons Tickets". "Ivanti Neurons" appears to be the ticket system used by the IBAC IT service desk to manage IT queries. IBAC objects to the production of these reports, and says they are not relevant, do not provide any evidence to support the Applicant's claim that she was terminated from her employment as a result of lodging a complaint. It says further that information pertaining to the 'distribution of work' and 'workload imbalance' does not provide any evidence to support the Applicant's claim that she was terminated from her employment as a result of lodging a complaint and is therefore not relevant. During a mention held in relation to this matter, I queried whether the production of these reports was a matter of simply entering the reporting parameters into the system and generating the report. I was told this is the process by which these reports are generated.
  2. In relation to item 4 - all MS Team chat logs and emails between Ms Duncan and Mr Trott - IBAC objects to his item on the basis that the scope of the request is unduly broad. It says without there having been provided specific search criteria, conversations dates and / or times, the request is tantamount to a "fishing exercise" requiring IBAC staff to exhaust further time and resources, and that the volume and demonstrated need for this information is disproportionate to the time that IBAC staff would be required to invest to complete it.
  3. Item 6 was, in Ms Duncan's original amended application, a request for the production of all MS Teams conversations between her and Mr De Luca. This was later refined to a request for the entirety of the MS Teams exchange which took place between Ms Duncan and Mr De Luca on 9 January 2025. IBAC originally provided part of that exchange, and then, on 1 May 2025, the entirety of that exchange. However later on 1 May 2025 Ms Duncan raised two issues: (a) that there is a discrepancy in the date/time formatting, which appears to reflect a US date / time convention, and (b) that she believes there are omissions in the transcript that require the search parameters to be broadened to include the period 8 January 2025 - 10 January 2025.
  4. In relation to item 7 - all correspondence relating to complaints made by Ms Duncan and IBAC's handling of those complaints, IBAC objects to the breadth of this request and asserts that it is a fishing exercise.

• [7] On 14 April 2025, Ms Duncan filed an Outline of Argument and a Statement of Evidence in relation to this matter and on 22 April 2025, an amended Outline and Statement. I therefore have a sense of the manner in which she puts her case in this matter - no doubt which will be supplemented by her oral submissions at hearing - but informative at this stage as to how materials she seeks to obtain may be relevant to this proceeding.
• [8] Several of IBAC's objections are based on the assertion that Ms Duncan is, in terms of the nature of her request for some categories of documents, engaged in a "fishing expedition". The notion of a "fishing expedition" is that an order for the production of documents is not to be used for the purpose of exploring whether there is a supportable basis for a case that might potentially be advanced[1].
• [9] Taking this into account I find as follows:
  1. An order will not issue in respect of item 4 - the request for all MS Team chat logs and emails between Ms Duncan and Mr Trott. I consider that the breadth of what is sought in this item reflects at, least in part, that Ms Duncan seeks this information to explore whether there is a further supportable basis for her claims rather than it being sought for a particular identifiable purpose relevant to the grounds of her application as they are now expressed in her Outlines. Taking into account the resources likely to be required to identify, collate and provide this material, I consider it inappropriate to make an Order in the terms I it is sought. Ms Duncan might consider refining her request for this documentation to correspondence from a more limited time period, or confined to a specific subject-matter relevant to her application. This could be the subject of a further application by Ms Duncan if she chose to make it.
  2. I do not intend to make an Order in relation item 6 at this time. I will shortly convene a short conference between the parties to attempt to resolve the controversy which now appears to exist in relation to the material that has been provided in respect to this item.
  3. In her Amended Outline, Ms Duncan submits, among other things, that:

"The Applicant argues that the Respondent took adverse action in the form of dismissal because the Applicant made multiple complaints about a colleague's work ethic, behaviour and conduct as well as complaints regarding the way in which IT tickets and the workload was being distributed unfairly across the IT service desk team."

It seems to me the Reports sought about the allocation of IT tickets are directly relevant to at least one of the grounds of Ms Duncan's application. I note that the Reports can be produced simply by the search fields being entered and the reports generated. An Order will issue for the production of those reports.

1. I have earlier refused to make an Order in respect of item 7. The reason for my refusal to make an order in relation to this item is that it is expressed in very general terms and appears to overlap with a number of the other items sought.

[1] Application by Mining and Energy Union re Mr Owen / Glendall Operations [2025] FWC 789 [25]; APESMA v Great Southern Energy [2024] FWCFB 106, [25], citing Kirkman v DP World Melbourne Ltd [2015] FWCFB 3995,[19], and Woodside Energy Ltd v Australian Worker's Union [2022] FWCFB 168, [29]

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