Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Application for an unfair dismissal remedy - Application for an order for the production of documents.

• [1] There is a contest in this matter as to whether Mrs Kupiec (the Applicant) was ever employed by Australian Skin Clinics Knox Pty Ltd (the Respondent), with it being said by the Applicant that there was both a transfer of business and that she was a transferring employee to the Respondent, Australian Skin Clinics Knox Pty Ltd. The Respondent objects to continuation of the application, putting forward that Mrs Kupiec was never employed by it and that there has not been a transfer of business. Allied objections are made to the effect that Mrs Kupiec had not served the minimum employment period and was not dismissed. A hearing of the Respondent's objections is scheduled before me on Monday, 7 April 2025 at 10 AM.

• [2] Through two emails to the Commission on 31 March 2025, the Applicant seeks an order for the production of three classes of documents. The application made by Mrs Kupiec was to be heard by me in a mention hearing scheduled for today, Wednesday 2 April 2025 at 9:30 AM. Earlier this morning the Applicant advised she would not attend the mention as she had work commitments.

• [3] I draw the Applicant's attention to the provisions of s.399A of the Fair Work Act 2009 (FW Act). Attendance at the Commission's mention hearing was not optional on her behalf. She was directed to attend. Should there be any further non-compliance with the Commission's directions, the Respondent will be at liberty to apply for dismissal of Mrs Kupiec's substantive application on the grounds within s.399A of the FW Act.

• [4] I now determine the Applicant's application for an order for the production of documents on the basis of the material now before me. The following documents are sought by Mrs Kupiec (noting that I paraphrase the Applicant's actual request and have not had the benefit of submissions confirming my paraphrasing is correct);

1. An order on Westfield Knox security for documents showing the arrival and departure time of Mr Bronfman's vehicle to/from the Westfield Knox carpark on Saturday 1 February 2025. Mr Bronfman is the director and principal of Australian Skin Clinics Knox Pty Ltd. Mr Bronfman would be obliged to disclose the registration number of his vehicle if this order was granted.

1. An order on Westfield Knox security for production of video footage from a surveillance camera located outside the Australian Skin Clinics Knox on Saturday 1 February 2025.

1. Copies of emails received by and sent from the email address manager.knox@australianskinclinics.com.au on Saturday 1 February 2025 between 9:00am and 3:30pm, as those emails relate to a "Secondment Agreement".

• [5] The Respondent objects to the issue of orders for production of the above documents.

• [6] The matters requiring determination in the jurisdictional hearing are narrow, albeit with some complexity on application of the facts to the law: was Mrs Kupiec a transferring employee in relation to a transfer of business from the former operator of Australian Skin Clinics Knox (which I understand to be Shariff Investments Pty Ltd) to the Respondent, Australian Skin Clinics Knox Pty Ltd?

• [7] According to a contract of sale filed by the Respondent, the date of effect of the sale was 31 January 2025. Section 22(7)(b) of the FW Act provides that there is a transfer of employment of an employee if (relevantly) the employee is a transferring employee and the first and second employers are not associated entities when the employee "becomes employed by the second employer". In this case, the second employer is the Respondent, Australian Skin Clinics Knox Pty Ltd, which denies it ever employed Mrs Kupiec.

• [8] Consideration of the Respondent's jurisdictional objection also requires application of the provisions of s.311 dealing with whether and when a transfer of business occurs. The Respondent denies there has been a transfer of business under Part 2 - 8 of the FW Act (of which s.311 is part). Insofar as s.311 deals with employment matters, as distinct to the status of the employer, s.311(2) defines a transferring employee as being one who satisfies the requirements in s.311(1). Of those requirements, there is no contest that Mrs Kupiec's employment with Shariff Investments Pty Ltd "terminated" (s.311(1)(a)), however it is disputed that she became "employed by the new employer", namely Australian Skin Clinics Knox Pty Ltd, (s.311(1)(b)).

• [9] It is unnecessary to repeat in detail the principles relating to orders for the production of documents, however I note they have recently been summarised by Vice President Gibian in the matters of Matthew Lawrence v United Workers' Union [2024] FWC 2040 and AMWU v Sublime Infrastructure Pty Ltd and Another, [2024] FWC 2135. No argument has been put in this matter that responsiveness to the proposed order would be "fishing" or oppressive. In Sublime Infrastructure, and with reference to the principle of apparent relevance, the Vice President said;

"[14] Apparent relevance is tested by asking whether it is "on the cards" that the documents sought will assist the party's case or the documents have the potential to "throw light on the issues". Relevance "may lie in giving rise to a line of enquiry which is relevant to the issue before the trier of facts" and documents "will frequently be relevant for the purpose of meeting the opposing case, as for example, by way of cross examination".

[15] In the context of Commission proceedings, whether an order for production should be issued will be subject to an overall assessment as to whether requiring the production of the documents represents an appropriate way for the Commission to inform itself.

• [10] Consideration of these matters leads me to the view that determination of the jurisdictional objections requires an analysis of the conduct of the parties in the days shortly before, on, and after 31 January 2025. In particular, it is unlikely jurisdiction will be found for the Applicant's unfair dismissal application if Mrs Kupiec is unable to satisfy the Commission that she became "employed by the new employer". Similarly, there will not be jurisdiction found if the Commission is satisfied of the Respondent's contention that there was no transfer of business.

• [11] The first two classes of documents sought by Mrs Kupiec relate to the movements of Mr Bronfman on Saturday 1 February 2025. While that subject may have importance in a merits hearing I am not satisfied it has apparent relevance in these proceedings. Ultimately the matters I need to determine in the jurisdictional hearing are to do with issues of contract, rather than the whereabouts of a particular person. The application for document classes 1 and 2 is refused.

• [12] The third class of document is for emails received and sent by an email account of the Respondent on Saturday 1 February 2025 as they relate to a "Secondment Agreement", whereby recipients were offered continuation of employment for four weeks after the sale took place if the recipient agreed they would perform work for the Respondent in its premises, but would continue to be paid by the outgoing employer, Shariff Investments Pty Ltd.

• [13] Although I am uncertain at this time the precise finding Mrs Kupiec invites about the Secondment Agreement, or how it assists her to overcome the jurisdictional objections, I accept that references to the document are central to her case, noting that she is yet to file her materials for the jurisdictional hearing. I accept then that there may be some apparent relevance to order the production of the emails she seeks, and I do not see that an order on the subject would prejudice the Respondent. Accordingly, an order to the following effect will be issued by the Commission;

"A copy of each email, unredacted, received by or sent from the email address manager.knox@australianskinclinics.com.au on Saturday, 1 February 2025 between 9:00am and 3:30pm, which deals with or refers to the 'Secondment Agreement' as referred to in the Respondent's submissions to the Fair Work Commission, dated 27 March 2025."

• [14] The Order will require production of these documents to the Commission by no later than 4 PM Thursday, 3 April 2025.

Applicant's filing in relation to the jurisdictional hearing

• [15] Directions for determination of the jurisdictional objections were issued by my Chambers on 20 March 2025. They required the Respondent to file materials in support of its objections by 4 PM Thursday, 27 March 2025 and the Applicant to file by 4 PM Thursday, 3 April 2025.

• [16] On Wednesday, 26 March 2025 the Respondent sought a 1 week extension for the filing of its materials, which was refused by me. It subsequently filed its materials on 3:49 PM on Thursday, 27 March 2025. Unfortunately, one of its documents, its outline of submissions, required resubmission, which was done the following day on Friday 28 March 2025 at 9:44 AM.

• [17] On 1 April 2025, the Applicant sought an extension of time for the filing of her materials, to 12 PM Friday, 4 April 2025. The application was refused. The Applicant returned to her application for an extension of time in her correspondence to the Commission on Wednesday, 2 April 2025, in which she advised she would not attend the listed mention hearing. The request was that the filing date and time be moved to 9 AM on Friday, 4 April 2025.

• [18] Ordinarily there would be no amendment to the filing directions in the circumstances in which a prior application has been refused and a party fails to attend a hearing of the Commission.

• [19] However, I am prepared in the overall circumstances of this matter to grant the application for an amendment for the limited reason that I have ordered the production of documents that may be relevant to the submissions Mrs Kupiec wishes to make on the jurisdictional objections. Accordingly, the Applicant's materials in support of her rebuttal of the Respondent's jurisdictional objection may be filed by no later than 9 AM Friday, 4 April 2025.

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