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[2020] FWC 1308
General information, not legal advice.
Fair Work Commission
2020-03-23
Original judgment source is linked above.
s.394 - Unfair dismissal
Application for an unfair dismissal remedy - applications seeking order for a witness to attend and give evidence and order for production of documents - applications opposed by respondent - both orders considered relevant to the unfair dismissal application and appropriate as a matter of discretion - Orders issued.
[1] This interlocutory decision concerns an application made by the Applicant in the substantive proceedings, Mr Hu, for a production order seeking documents from a third party (the production order application) and another application seeking to have a witness attend the Commission (the summons application). Each application was opposed.
[2] The immediate context for the present application is that Mr Hu has applied to the Commission for a remedy in connection with an alleged unfair dismissal under s.394 of the Fair Work Act 2009 (the Act) following his dismissal by the Respondent in this matter, Shanghai Garden Chinese Restaurant.[1] This matter is presently listed for hearing before this arm of the Commission in May 2020.
[3] The summons application involved the Applicant seeking an order requiring a former employee of the Respondent to attend the Commission to give evidence pursuant to s.590(2)(a) of the Act and Rule 53 of the Fair Work Commission Rules 2013 (the Rules).
[4] The production order application involved the Applicant seeking an order requiring production of specified documents from a third party to the Commission in accordance with s.590(2)(c) of the Act and Rule 54 of the Rules.
[5] Section 590 of the Act relevantly provides as follows:
(1) The FWC may, except as provided by this Act, inform itself in relation to any matter before it in such manner as it considers appropriate.
(2) Without limiting subsection (1), the FWC may inform itself in the following ways:
(a) by requiring a person to attend before the FWC;
(b) by inviting, subject to any terms and conditions determined by the FWC, oral or written submissions;
(c) by requiring a person to provide copies of documents or records, or to provide any other information to the FWC;
[6] Having heard from the parties during the course of a directions conference conducted on 10 March 2020, I determined to issue both the production order and the summons, largely in the terms sought. In so doing, I indicated that in the case of the summons, liberty had been granted to the Respondent to make an application to set that summons aside after it has filed its materials in this matter. I also indicated that formal written reasons for decision would be issued upon request.
[7] Counsel for the Respondent subsequently sought that reasons for decision be issued by the Commission.
[8] In order to set the context for the decision to grant the applications, it is necessary to outline some of the controversies that arise in this matter. In so doing, I would make it clear that each party has made very serious allegations against the other, no evidence has yet been filed and what follows is based upon the untested material provided by each party in the context of the originating application, the present applications, and the responses provided by the Respondent. No findings have been made by the Commission about these matters.
[9] It appears to be common ground that the Respondent conducts a restaurant and the Applicant was engaged to work in that business as a full-time Cook between June 2018 and October 2019. The Applicant is a Chinese national and has come to Australia under a subclass 457 work visa arrangement to work with the Respondent.
[10] Amongst many other matters, the Applicant contends that:
He was exploited during his employment by the Respondent and was dismissed after the Director of the business became aware that he had made a complaint to the Fair Work Ombudsman (FWO) about the wage payments and other arrangements imposed by the Respondent and had refused to continue complying with a visa scam;
The Respondent had conspired with the Migration Agent that was involved in obtaining the visa and supplied false and misleading information to the authorities to support the visa application, and there was no dialog between the Applicant and the Respondent about his background, skills or qualification or the terms and conditions of employment which was all organised by the Migration Agent for a service and training fee;
The Respondent was now relying upon this false documentation to justify its defence of the unfair dismissal application;
The Respondent, had during his employment, required him at various times to pay from his wages significant cash amounts back to the employer and that this amounted to $28,920 between June 2018 and May 2019. This was done to give the appearance that a (full) salary was being paid;
When he ran out of money to pay the Respondent, he worked unpaid for a period between June and September 2019, and when the Respondent became aware that the authorities were interested, payments were resumed and time books fabricated; and
His dismissal was unfair and led to significant personal and financial hardship.
[11] I also note that during proceedings associated with this matter, the Applicant claimed that he had been dismissed because he had reported this matter to the FWO and the Australian Border Force (ABF) and this was the reason for his dismissal. However, Mr Jia who appeared for the Applicant, could not confirm when the report to the ABF was made in relation to the timing of the dismissal and I have not placed weight upon that particular aspect for present purposes.
[12] Amongst many other matters, the Respondent contends that:
The Applicant was dismissed due to customer complaints and poor work performance following three written warnings;
The alleged complaint about deceptive conduct with respect to the salary arrangements was not the cause of the dismissal and the claims underpinning the complaint are completely untrue;
The Applicant required the Respondent to pay him in cash as he had closed his 'bank' account due to personal circumstances;
The Respondent paid the Applicant's salary in full and utilised cash payments only because he did not have a 'bank' account, insisted that the Applicant set up such an account, and denied that anything improper occurred; and
The Applicant had provided false and fraudulent documentation to the authorities and to the Respondent about his English language qualifications and skills, and potentially his cooking experience and training.
[13] I observe that amongst other matters, the basis and formation of the employment, the pay and conditions arrangement, who was responsible for supplying the (false) English language qualifications, many of the events that occurred during the employment, and the reason and justification for the dismissal itself are all in dispute. The credibility and honesty of the parties is also in issue.
[14] I have also taken steps[2] to ensure that all witnesses are placed on notice about the privilege against self-incrimination that may apply to certain aspects of their evidence given the very serious mutual allegations of fraud and dishonesty.
[15] This application sought production from the Department of Home Affairs (DHA) of two specific application files; namely:
Application files in respect of the Respondent nominating the Applicant for a visa (full file numbers and ID number supplied); and
Application files in respect to the Applicant applying for a 457 visa (full file numbers and ID number supplied).
[16] The basis of the application was, in effect, that the Applicant's visa application and employer sponsorship was fraudulently arranged by the Respondent in conjunction with the Migration Agent (and not by the Applicant) and that his dismissal is connected with these arrangements. It was also contended that the DHA files would provide confirmation as to who was making the requisite applications and in what circumstances.
[17] The Applicant sought to have a person summonsed who was allegedly employed by the Respondent under the same arrangements, subject to the same treatment, and was a witness to some of the events relevant to the application who could confirm the Applicant's statements.
[18] The Applicant also contended that the question as to whether the Respondent was involved in a "visa scam will determine whether the dismissal was unfair or not"[3] and the person's evidence would assist the Commission to canvass the whole story.
[19] The person concerned is now employed by a different employer and the Commission was informed by the Applicant's lawyer that the witness required a summons to attend given her present circumstances.
[20] The Respondent opposed both applications substantially on the grounds of relevance. That is, it was not relevant to the determination of the unfair dismissal application for the DHA files to be provided or for another ex-employee to give evidence about their circumstances. It further contended that there was no reliable suggestion or evidence that the Applicant had made a complaint to the BFA or DHA in relation to the matter, was relying upon this in the unfair dismissal application, or that this played any role in the dismissal.
[21] Further, the Respondent contended that the Applicant was using these applications to obtain material and evidence that might relevant to his complaints to the FWO but not to the unfair dismissal matter. In addition, the Applicant appeared to now be raising complaints about his immigration to Australia which was not relevant to the Commission.
[22] The Respondent submitted that the Applicant had failed to demonstrate that the applications were relevant or that they should be issued.
[23] In general terms, the Commission has power under s.590(2)(c) of the Act to inform itself in relation to any matter before it in such manner as it considers appropriate. This includes requiring production of copies of documents and records that may also establish evidence to support or challenge a party's case and the power is expressed in broad terms.[4] The making of such an order is discretionary, requiring consideration of all of the relevant circumstances including:
Apparent (not necessarily direct) relevance to the issues in dispute;
Whether a sound forensic basis for seeking the material has been provided or whether the orders represent a fishing expedition;
Whether the documents are being sought for a collateral or improper purpose;
Whether questions of legal professional privileged or confidentiality arise;
The implications for the party concerned including the cost, inconvenience and delay associated with compliance;
[24] The above are not exhaustive and any one of these factors are not generally determinative in their own right. Further, to the extent that some of these considerations might militate against an order being made, the Commission might in appropriate cases utilise confidentiality orders under s.593 and s.594 of the Act, allow documents to be provided in a redacted form, and/or regulate access to the documents produced, subject to natural justice considerations.
[25] The approach to the issue of a summons requiring a person to attend as a witness relies upon many of the same considerations and an assessment as to whether it is both necessary for a summons to be issued (the person requires a summons and is not volunteering to attend without the summons) and whether their evidence is likely to be of sufficient probative value in determining relevant factual disputes apposite to the matter.
[26] All of these considerations are informed by the object of the Act in s.3 and the object of Part 3-2 set out in s.381 in the following terms:
(a) to establish a framework for dealing with unfair dismissal that balances:
(i) the needs of business (including small business); and
(b) to establish procedures for dealing with unfair dismissal that:
(ii) address the needs of employers and employees; and
(c) to provide remedies if a dismissal is found to be unfair, with an emphasis on reinstatement.
(2) The procedures and remedies referred to in paragraphs (1)(b) and (c), and the manner of deciding on and working out such remedies, are intended to ensure that a "fair go all round" is accorded to both the employer and employee concerned.
Note: The expression "fair go all round" was used by Sheldon J in in re Loty and Holloway v Australian Workers' Union [1971] AR (NSW) 95.
[27] In light of these objects, the Commission should also be mindful about adding unwarranted and disproportionate expense and complexity to a matter of this kind.
[28] There were some factors that militated against the orders being made including the fact that the unfair dismissal application is not a general enquiry into whether the Respondent was a good employer or treated others unfairly. Should the foreshadowed evidence of the other former employee only be directed to that end, I would not have issued the summons. Further, the Commission is not enquiring into whether there has been some form of visa fraud itself, or whether the Applicant was underpaid or coerced into any alleged improper arrangement - other than to the extent that these are directly relevant to the considerations arising in the unfair dismissal matter itself.
[29] However, having regard to all of the circumstances of this matter, I was satisfied that there was sufficient relevance and probative value in relation to the issues relevant to the unfair dismissal matter to warrant the orders being made. I was also satisfied that it was appropriate to exercise my discretion to grant the applications. Amongst the factors going to the relevance of the production order and the summons were the following:
- The former employee's evidence was capable of shedding light upon the payment arrangements operating in the workplace, the Applicant's conduct and work performance, and potentially, the visa arrangements applicable to the Applicant.
- The Applicant's qualifications, English language training and skills and what he communicated to the Respondent about these matters (if anything) are relevant to the existence of a valid reason for dismissal.
- The DHA files may assist the Commission to determine who provided the apparently false documentation, which in turn would be relevant to both the Applicant's case and the Respondent's defence of the application. This is irrespective of whether the Applicant made a complaint to the BFA or DHA prior to the dismissal.
[30] I observe, for example, that the question of whether there was a valid reason for dismissal, is not confirmed by the reasons provided by the employer at the time, or by the contentions of the applicant.[8] Further, the considerations in both s.387 and those provisions applicable to remedy in Division 4 of Part 3-2 involve matters of somewhat wide discretion within the framework of the stated considerations. The question of relevance in an unfair dismissal matter is impacted by this statutory charter.
[31] I also observe that both orders are capable of shedding light upon the credibility of the parties. However, given the potential for the additional material to broaden the scope of the hearing, I would not have granted either application on that basis alone and have made the orders because of the probative value in relation to the direct relevant issues between the parties.
[32] Further, some of the material that has already been provided in response to earlier production orders sought by both parties and referred to as part of the immediate proceedings, provides some prima face support for the fact that DHA files and the additional witness evidence could be probative to support or challenge both parties' competing propositions in this matter.
[33] I also considered the circumstances of the parties, including that each require the use of translation and interpreter services to participate in the Commission's processes, and the Respondent appears to be a small business. However, each party is represented, with permission, by a lawyer and the issues arsing in this matter mean that the provision of evidence that might shed light on the some of the hotly contested factual matters should be explored in the interests of justice. Further, as alluded to above, both parties have already extensively utilised production order applications to ascertain related materials.
[34] As outlined earlier, the Commission issued the production order and summons largely in the terms as sought. Liberty was granted to the Respondent to raise further objections about the summons once it had filed its substantive materials in preparation for the hearing. I adopted this course of action because the Commission would by then be better informed of each parties' full position and evidence more generally. In particular, if it was suggested by the evidence that the other former employee was not a contemporary of the Applicant and did not work with him, I may take a different view about that summons. In the intervening period, the person summonsed was aware of the hearing and the present order requiring her attendance.
[35] Consistent with the normal approach of the Commission, whether any of the evidence arising from the orders is ultimately admissible will be considered by the Commission during the hearing of this matter.
Q Jia, of Towards Lawyers with permission on behalf of the Applicant.
D Fabbro, of counsel with R Townsend of Townsend Lawyers, with permission on behalf of the Respondent.
[1] The Applicant has recently indicated that leave will be sought to amend the name of the Respondent to the legal entity who had employed him. This has not yet been dealt with.
[2] Through the directions requiring that the witnesses be given a relevant statement of the privilege in a language accessible to each.
[4] Clermont Coal Pty Ltd and others v Troy Brown and others [2015] FWCFB 2460 at [21].
[5] See Clermont Coal Pty Ltd and others v Troy Brown and others [2015] FWCFB 2460 at [23] for the caution to be taken in applying this consideration. This is not relevant in this matter.
[6] See also the authorities summarised in Australian Nursing Federation v Victorian Hospitals' Industrial Association [2011] FWA 8756 including in particular Clerks' (Alcoa of Australia - Mining and Refining) Consolidated Award 1985 AIRC Print H2892.
[7] At least in terms of compensation, the Commission is obliged by s.392(2)(c) to assess the anticipated period of employment (lost remuneration) but for the dismissal, and the rate of remuneration is relevant more generally.
[8] See Shepherd v Felt & Textiles of Australia Ltd (1931) 45 CLR 359, 373, 377‒378; Australia Meat Holdings Pty Ltd v McLauchlan (1998) 84 IR 1, 14. See also Dundovich v P & O Ports AIRC PR923358 8 October 2002, per Ross VP, Hamilton DP, Eames C, at [79]; Lane v Arrowcrest (1990) 27 FCR 427, 456; cited with approval in Byrne & Frew v Australian Airlines Ltd (1995) 185 CLR 410, 467 and 468.
Printed by authority of the Commonwealth Government Printer
Xun Hu
Shanghai Garden Chinese Restaurant [2020] FWC 1308
(1931) 45 CLR 359
(1998) 84 IR 1
(1990) 27 FCR 427
(1995) 185 CLR 410