s.394 - Application for unfair dismissal remedy

Application for unfair dismissal remedy - Application for orders to produce

• [1] Mr Tesfaye (Applicant) has made an application under section 394 of the Fair Work Act 2009 ('Act') for an unfair dismissal remedy. The Respondent to that application has a made a jurisdictional objection to the application on the basis that the Applicant was not dismissed. A jurisdictional hearing has been programmed for 11 November 2025.

• [2] On 14 October 2025, the Applicant made an application for orders to produce directed to his former employer. In anticipation of an objection to an order in the terms sought being made, I issued a Statement and Directions on 16 October 2025 in which I set a timetable for submissions and any refinements to the proposed Order to be provided. In that Statement, I also expressed my preliminary view that:

(a) it is not appropriate at this time to make orders to produce in respect of matters that are relevant to and have a legitimate forensic purpose exclusively in respect of the of merits of the substantive claim;

(b) It is appropriate at this time to make orders to produce in respect of matters that are relevant to and have a legitimate forensic purpose in respect of the jurisdictional issue, even if those matters are also relevant to the merits of the substantial claim.

• [3] The Applicant refined the terms of the Order he was seeking in response to the preliminary view. The Respondent continued to oppose an Order being granted, on the grounds of relevance and the application represented a "fishing expedition". The Respondent did not comment on the preliminary view. I confirm the preliminary view.

• [4] Having regard to the materials filed by the parties, I consider it is not appropriate to issue an order in terms sought. The Applicant's refined proposal is too broad, including in relation to the time period in respect of which documents are sought. Further, it seeks to explore the allegations made against the Applicant in circumstances where (a) there is no dispute that the Respondent became aware of allegations against the Applicant and (b) the veracity of those allegations is relevant exclusively to the merits of the claim should it survive the jurisdictional challenge.

• [5] Whilst the Applicant has not been required to submit his materials on the jurisdictional issue as yet, it is reasonably apparent from the terms of his Application form (Form F2) that he considers that he was dismissed by his employer, a labour hire provider, as a result of conduct that he was alleged to have engaged in by a host company while assigned to that host. That is, the Applicant believes that there was a decision by the Respondent to dismiss him which was made by reference to that alleged conduct. The Respondent has provided its material and it is reasonably apparent that its position is that whilst it was informed of - and did act in response to - the host employer's wishes, the decisions it took did not amount to or give effect to a dismissal.

• [6] As such, the nature of the decisions that Respondent took at the material time is squarely in issue. In terms of defining a material time, a period commencing 10 June 2025 (the day before the Applicant says he "discovered" his upcoming shifts were cancelled) and 25 June 2025 (the day the Applicant says he was told about being dismissed) appears appropriate. With that in mind, it would seem uncontroversial to require the Respondent to produce "All communications, or records of communications, concerning the decisions taken by [the Respondent] in relation to the Applicant's employment in the period 10 June 2025 to 25 June 2025".

• [7] I can apprehend that the Respondent might see it as in its interests to disclose such records, however I am not presently aware of whether the Applicant would seek an order in such confined terms. Accordingly, I do not propose to make that order at this time. If a further Application is made in such terms, I will deal with it promptly.

Printed by authority of the Commonwealth Government Printer