Submissions
11The Council relied on the affidavit of Mr Nassif, so far as it is relevant to the amended notice of motion, and argued that:
11.1 The summons to produce documents relating to complaints or grievances against Mr Les Simons during the period 1 January 2007 to date is not relevant to the unfair dismissal proceedings involving Ms Annie Cotterill. It argued that the Union has not demonstrated how such documents can be relevant in view of the fact that Ms Cotterill's employment was terminated by her resignation on 9 November 2010.
In that regard, the Council relied on Trade Practices Commission v Arnotts Limited & Ors. (1989) 88 ALR 90 in which Beaumont J held (at p 103) that:
The test of adjectival relevance is satisfied if the material has apparent relevance. In my opinion, the documentation called for here could possibly throw light on the issues in the main case....
11.2 The documents summonsed are not necessary for the fair disposition of the proceedings.
The Council submitted that the primary test of whether a summons or an element of a summons is permissible is whether the documents summonsed are necessary for the disposition of the proceedings. In other words, whether the evidence sought is not only relevant, but necessary, for the fair disposition of the proceedings: Arhill v General Terminal Company (1990) 23 NSWLR 545 at 556.
11.3 The union has to date failed to demonstrate that it is at least "on the cards" that the documents summonsed will assist the Applicant's case.
11.4 The Union has failed to demonstrate a legitimate forensic purpose for the documents requested.
The Council relied on the observations by Hunt CJ in Attorney-General v Stuart 34 NSWLR at p 681:
The concept of legitimate forensic purpose is not confined to claims of public interest immunity. It arises whenever a party seeks access to documents for which he has issued a subpoena; where objection is taken, a party who is unable to show that it is at least "on the cards" that such documents will assist his case is not entitled to have access to such documents simply to see whether they may do so.
11.5 The material identified in the summons for production has no relevance to any of the matters identified in respect of the unfair dismissal proceedings.
The Council argued that as the Applicant has failed to discharge the obligation in (4) above, it suggests that the evidence sought has no conceivable relationship to the fair disposition of the unfair dismissal proceedings and does not provide any specific insight into the relationship between the Applicant and the other employees and, to that extent, is irrelevant.
11.6 The point of contention in the substantive proceedings is whether the Applicant terminated the employment by resignation or whether the termination occurred at the initiative of the Council. The Council contends that the Applicant resigned her employment voluntarily and therefore cannot attract the jurisdiction of the Commission. On that basis, the Applicant needs to demonstrate to the Commission how the specific circumstances of other grievances are relevant to the facts and circumstances of her resignation.
In the Council's view, none of the documents sought in relation to grievances against Mr Simons are analogous to the circumstances of the Applicant nor do they provide any specific insight into the nature of the relationship between the Applicant and Mr Simons.
11.7 The documents being sought contain sensitive and confidential information that has nothing to do with these proceedings. No approval has been obtained from the individuals concerned to produce their documents. The Union is well aware of the particular circumstances pertaining to Mr Maaya and possibly Mr Bailey as their grievances were handled by the Union. The Union may well be in possession of the very documents requested, or at least in a position to ask their members for the documents.
11.8 The Council reserves its rights to object to the admissibility of the material on the basis of the Tendency Rule and the Credibility Rule pursuant to ss 97 and 102 of the Evidence Act 1995 (NSW) should the Applicant intend to use the evidence in the substantive proceedings to establish a tendency or pattern of behaviour by Mr Simons.
12The Union relied on the affidavit of Mr Steven Donley, a permanent fulltime employee of the Union in which he stated that:
12.1 Part of Mr Donley's duties included dealing with industrial and employment related issues associated with the Council. In that context, he has been aware, for over one year, of controversy in the workplace associated with aspects of Mr Les Simons' treatment of a range of employees. Mr Simons holds a supervisory role at the Liverpool depot.
12.2 Mr Donley is aware of an investigation conducted by an external investigator into complaints by Mr Amjad Maaya as to the manner in which he was spoken to by Mr Simons regarding a motor vehicle during which the latter allegedly made comments about Mr Maaya's disabled son. Mr Donley was discussing that matter with the General Manager on Ms Cotterill's last day at work.
12.3 Mr Donley is also aware that the Council is currently conducting an investigation into a " without prejudice " letter to the Council dated 29 November 2010 and signed by 12 members of the Management Team of City and Facility Maintenance who report to Mr Simons at the said Depot. The joint letter alleged that " The team is being adversely affected both mentally and physically by the alleged constant and continued harassment and bullying by Les Simons " - behaviour designed to offend, humiliate and intimidate the employees. The letter noted that this behaviour " has been formally reported to council " and " individually and as a group the team has requested intervention by management " and were assured that their concerns would be investigated. It was contended that, despite the assurances, only one investigation had taken place.
12.4 Whilst Mr Donley agreed that industrial action taken by staff was in support of Ms Cotterill, he pointed out that it was also in taken in protest at the general conduct of Mr Simons towards a number of employees over a number of months and over his treatment of staff generally.
13The Union further argued that:
13.1 The high water mark one would look to if applying the rules of evidence is section 55 of the Evidence Act 1995 which provides that:
(1) The evidence that is relevant in a proceeding is evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding...
[emphasis added]
The summons is relevant. The Union noted that there is no law that determines the factual matrix of what constitutes an unfair dismissal nor are there any parameters or definitive law that determines a constructive dismissal. Therefore, as it is a question of fact that needs to be determined and not a question of law, the circumstances surrounding the dismissal need to be considered.
13.2 Ms Cotterill has developed her own case in the section 84 claim as she is entitled to do in order to provide a factual background as to what happened on that day. It was pointed out that in its reply to the s. 84 application, the Council's case commenced on 9 November 2010. Ms Cotterill submitted that her case commenced before that date. The Union pointed out that constructive dismissal does not necessarily have to involve an act by the employer but may be by way of inaction or conduct. In that regard, the Union cited Police Service of New South Wales v Batton [2000] NSWIRComm 79 [parag. 22]:
Although the term "constructive dismissal" is quite commonly used it can deflect attention from the real inquiry. That inquiry should involve an analysis of what occurred. Did the employer behave in such a way so as to render the employer's conduct the real and effective initiator of the termination of the contract of employment and was this so despite on the face of it the employee appears to have given his or her resignation?
It is obvious that a consideration of these matters must be made on a case-by-case basis and that an attempt to formulate general principles in the absence of particular facts will not assist in the overall determination of this issue.
It was also pointed out that the Council does not respond to the factual background provided by the Applicant although it was well aware of the complaints that were being made about Mr Simons and about the close proximity of the Applicant's work station to Mr Simons. No risk assessment was made to determine how Mr Simon's behaviour was affecting their workers nor was information provided to the workers as to how the complaints about Mr Simons were being handled.
13.3 The Applicant submitted that the Union has not problem in seeking the documentation from its members as to previous complaints. However, the Council is in possession of the original documents. The Union has no difficulty in dealing with the conventions associated with confidential information and was prepared to provide undertakings to the Commission as to the maintenance of confidentiality in relation to documents produced in response to the summons to produce.
13.4 The Union was prepared to amend its subpoena to confine the documents sought to the period from 26 May 2008 which the Council identified in the proceedings as being the date on which Mr Simons commenced with the Council in the Supervisory role.