Fair Work Act 2009

s.590(2)(c) - Applications requiring a person to provided copies of documents or records or to provide any other information to the Fair Work Commission

Qantas Ground Services PTY LTD T/A Qantas Ground Services PTY LTD, Qantas Group

Application for Orders requiring production of documents - several orders to be made though not in the terms sought, with orders not made in respect of two parties.

[1] The background to this matter is set out in part in my decision of 28 March 2018[1] regarding the issue of permission to represent. As noted in that decision, on 19 December 2017 Mr Ross Kennedy (the Applicant) lodged with the Fair Work Commission (the Commission) applications seeking several orders for the production of documents in respect of his unfair dismissal application. Mr Kennedy contends that his dismissal on 2 November 2017 by Qantas Ground Services Pty Ltd T/A Qantas Ground Services Pty Ltd, Qantas Group (QGS) was unfair. As also noted in the abovementioned decision the parties agreed at a mention and directions hearing on 22 December 2017 that Mr Kennedy's applications for orders to produce would be considered once the issue of permission to represent had been determined by the Commission.

[2] In summary, Mr Kennedy sought Orders against:

• QGS;

• Dr Kipling Walker who was engaged by QGS to provide a Fitness for Work Assessment and Report in respect of Mr Kennedy;

• Recovery Partners who were engaged by QGS to prepare a return to work plan in respect of Mr Kennedy after he went on personal leave in mid-2016;

• MJSP Management Consulting (MJSP) who were engaged by QGS to investigate Mr Kennedy's bullying allegations; and

• Allianz Insurance Australia (Allianz) who were the insurer dealing with Mr Kennedy's workers' compensation claim related to his employment with QGS.

[3] By way of background Mr Kennedy was dismissed on 2 November 2017 as QGS had determined, based on medical evidence, that Mr Kennedy had "no capacity, and will not have capacity in the foreseeable future, to safely perform the inherent requirements of any role with the Company."[2] The medical evidence included a report provided by Dr Walker which QGS considered to be "more instructive"[3] than a report prepared by a Dr Gertler. Prior to that in May 2016 Mr Kennedy lodged an application for an order to stop bullying in which he contended that he had been bullied by a number of QGS employees over the period 2013 to 2016. Mr Kennedy's bullying application is currently in abeyance pending determination of his unfair dismissal application.

[4] Mr Kennedy submitted revised draft Orders to produce and/or sought additional documents from one or more party on 3, 18 and 26 April 2018.

[5] Mr Kennedy's applications were the subject of a mention and directions hearing on 6 April 2018 and a conference on 30 April 2018 to deal with the applications. Appearing at the conference were Mr Kennedy, Mr Michael O'Neil (Qantas' Head of Industrial Relations, Associated Airlines and Services) and Mr Brett Hardy (Head of QGS), Dr Walker, Ms Athena Koelmeyer on behalf of Recovery Partners and Mr Mark Healy of Counsel and Mr Mike Swartz (a Partner with MJSP) on behalf of MJSP. Allianz did not appear at the conference.

[6] I will summarise the outcome in respect of each applications made by Mr Kennedy. As noted by the Full Bench in Clermont Coal Pty Ltd & Ors v Brown & Ors[4] in considering the relevance of documents for which an order for production is sought the test is "whether the documents sought have an apparent relevance to the issues in the proceedings."[5] That is the approach I have adopted.

[7] Mr Kennedy sought an Order requiring Dr Walker to produce five categories of documents. Dr Walker objected to Mr Kennedy's application, indicating that in respect of proposed Order 2 he did not keep the documents provided to him by QGS. QGS contended that much of the material sought was likely to be adduced by way of evidence and therefore did not object to the Orders sought by Mr Kennedy. With regard to proposed Orders 1 and 2, QGS indicated that it would have most, if not all, of the documents sought and that it was amenable to providing those documents.

[8] Having regards to the parties' submissions, I am satisfied that all of the documents sought by Mr Kennedy are relevant to his application. In respect of the documents relating to proposed Orders 1 and 2, which broadly relate to Dr Walker's engagement by QGS and correspondence between Dr Walker, the practice in which he works and QGS regarding his report, QGS will be ordered to produce those documents. Dr Walker will be ordered to produce the documents sought by Mr Kennedy in proposed Orders 3-5.

[9] Mr Kennedy sought an Order requiring MJSP to produce eight documents, all of which related to MJSP's investigation of Mr Kennedy's bullying claims. MJSP submitted that, as the investigation report was not cited in Mr Kennedy's unfair dismissal application as a reason why his dismissal was unfair nor mentioned in the letters of 27 September and 2 November 2017 from Mr Hardy to Mr Kennedy, the documents were wholly irrelevant to his unfair dismissal application. Mr Kennedy maintained that the documents were relevant given that Dr Walker's report included the following when referring to his application for an order to stop bullying - "An independent investigation did not substantiate his allegations."[6]

[10] On 1 May 2018 Mr O'Neil advised the Commission that QGS did not press a claim for legal professional privilege in respect of the document covered by Mr Kennedy's proposed Order 1 in respect of MJSP.

[11] Having considered the parties' various submissions I am not prepared to make any of orders sought by Mr Kennedy in respect of MJSP as I am not satisfied as to the relevance of the documents sought by Mr Kennedy.

[12] Mr Kennedy sought an Order requiring Recovery Partners to produce nine documents. At the conference Recovery Partners submitted that it was not in a position to comment on the relevance of the documents sought by Mr Kennedy. Recovery Partners also reiterated its written submission that no documents existed in respect of proposed Orders 2 and 3 and raised privacy concerns in respect of proposed Order 5 given that the document sought was a return to work plan relating to another QGS employee.

[13] Having considered the parties' submissions, the proposed Orders 1, 4 and 7 sought by Mr Kennedy will be made on the basis that the documents are relevant. Given Recovery Partners' submissions that documents do not exist in respect of proposed Orders 2 and 3, I do not propose to make Orders sought in respect of those documents. As to the remaining documents sought in proposed Orders 6, 8 and 9, I do not propose to order that the documents be produced as I am not satisfied as to the relevance of the documents.

[14] With regard to proposed Order 5, on 8 May 2018 Mr Kennedy forwarded to the Commission a Statutory Declaration made by Mr Christopher Mackonis, an employee of QGS at Canberra International Airport, in which he among other things outlined problems he encountered with Recovery Partners in respect of its work on a return to work plan for him and gave permission for Mr Kennedy to access a copy of his return to work plan held by Recovery Partners and a copy of his completed 2018 Staff Satisfaction Engagement Survey held by QGS. While Mr Mackonis' statutory declaration addresses any privacy considerations in respect of Mr Kennedy's application for an Order requiring the production of his return to work plan, I am not satisfied that the document is relevant. I would note that there is nothing to preclude Mr Mackonis obtaining a copy of the documents and providing them to Mr Kennedy should he wish to do so.

[15] Mr Kennedy sought an Order requiring Allianz to produce three documents. At the conference, Mr Kennedy did not press the Orders sought in the light of the Commission's questions regarding relevance and the approach adopted by the Commission in respect of the application relating to MJSP.

[16] Mr Kennedy sought an Order requiring QGS to produce 107 documents in total, the bulk of which appear to relate issues associated with his bullying claims.

[17] At the conference, Mr Kennedy advised that in the light of discussions at the conference that he no longer pressed his application in respect of all but a few of the documents he sought from QGS. Specifically:

• Mr Kennedy indicated that he did not press proposed Orders 1-81, 84, 86, 90-93, 95-102 and 104-107;

• Mr Kennedy pressed proposed Orders 82, 83, 85, 87-89 and 103; and

• QGS undertook to voluntarily provide Mr Kennedy with copy of his personnel file (proposed Order 94 sought by Mr Kennedy) - accordingly I consider an Order in respect of that document to be unnecessary.

[18] With regard to those documents where Mr Kennedy pressed his application, I have decided to make orders in respect of proposed Orders 82 and 83 on the basis that they are relevant to the proceedings. However I have decided not to make orders in respect of proposed:

• Order 85 and 87 on the basis that the documents sought are covered by the material to be produced by QGS in accordance with what was proposed Order 1 in respect of Dr Walker;

• Order 89 on the basis that the documents sought are not relevant and having regard to the Mr Hardy's letter to Mr Kennedy of 27 September 2017 in which he confirmed that QGS did not obtain a supplementary report from Dr Walker[7]; and

• Order 103 on the basis that the documents sought are not relevant.

[19] In subsequent developments, on 3 May 2018 Mr Kennedy sent an email to the Commission contending inter alia that he had been denied procedural fairness at the conference in respect of any response he may have had regarding a document tabled by QGS setting out its views regarding each of the documents sought by Mr Kennedy (including the documents sought from parties other than QGS). While I note Mr Kennedy's contention I do not accept it in circumstances where it was Mr Kennedy who went through the list of documents sought from QGS, as set out in the document tabled by QGS at the conference, and indicated that he either pressed or did not press his application in respect of each document. Where Mr Kennedy indicated that he pressed his application he was given the opportunity to set out the reasons for seeking the document and its relevance to his unfair dismissal application. QGS was similarly given an opportunity to outline it views, with Mr Kennedy having the opportunity to respond. In respect of the applications relating to the other parties, Mr Kennedy was given the opportunity to make submissions in support of his application and respond to the submissions of the other parties.

[20] Finally, I would highlight that it is open to Mr Kennedy to make further applications for Orders to produce at any time, including once the parties' respective outlines of submissions and evidentiary material regarding Mr Kennedy's unfair dismissal application have been filed.

[21] Orders as outlined above in respect of Dr Walker, Recovery Partners and QGS will be issued in conjunction with the Decision.

[22] As advised at the conference, Mr Kennedy's application for various persons to be required to attend the hearing of his unfair dismissal application will be listed for hearing once the parties' respective outlines of submissions and evidentiary material have been filed in accordance with the Directions issued in conjunction with this Decision.

[1] [2018] FWC 1818

[2] Termination letter as attached to Form F2 - Unfair dismissal application

[4] [2015] FWCFB 2460

[6] See page 2 of Dr Walker's report of 27 March 2017

[7] Attachment to Form F2 - Unfair dismissal application

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