Aaron Baynes v Pulse Collaboration Systems Pty Limited T/A Pulse Collaboration Systems [2020] FWC 1861

1 Fair Work Act 2009 s.394—Unfair dismissal Aaron Baynes v Pulse Collaboration Systems Pty Limited T/A Pulse Collaboration Systems (U2020/298) COMMISSIONER WILSON MELBOURNE, 9 APRIL 2020 Applications for an order for the production of documents. Applications lack of adjectival relevance; were fishing; or sought for a collateral purpose. Applications refused. [1] The following are my reasons for a decision given in transcript at the conclusion of a hearing yesterday, 8 April 2020. The Applicant, Mr Aaron Baynes, appeared for himself in the hearing, with the Respondent, Pulse Collaboration Systems Pty Limited (Pulse) granted permission by me for representation by a lawyer, Mr Adrian Barwick, solicitor, from Williamson Barwick. [2] Five applications have been made by Mr Baynes for an order from the Fair Work Commission (the Commission) for the production by Pulse of documents in support of Mr Baynes’ application to the Commission for an extension of time for an unfair dismissal remedy. [3] The classes of documents sought, and the reasons advanced by Mr Baynes for their production are summarised below. Some of the documents sought refer by name to particular people whose names are then connected with matters that may either be the subject of a factual contest or unconnected with the matters that need to be determined by the Commission, for that reason I have de-identified both the categories of documents sought and the reasons advanced by Mr Baynes for their production: “1. The communication between Person A and Person B during Oct 18 in relation to Aaron Baynes Sexually Harassing Person C.” Mr Baynes puts forward that this class of document will prove if Person C made a complaint about him and will disprove a report made in the Witness Statement of Person B. Mr Baynes submits that this will support his application for an extension of time to file his unfair dismissal application as it will support his Witness Statement that he was being threatened by Person B. “2. Expense claims for Professional Scrum Master I certification(s) from scrum.org that were requested by Person B or Person C for 2018.” [2020] FWC 1861 REASONS FOR DECISION -- 1 of 7 -- [2020] FWC 1861 2 The reason advanced by Mr Baynes for this class of document is that Persons B and Person C were in a personal relationship and that there was an argument between the two that Person B was not spending enough money on Person C. Mr Baynes makes the allegation that Person C misused a company expense card to purchase additional tests in response to this argument. Mr Baynes submits that the expense claims will support his application for an extension of time to file his unfair dismissal application as it will prove the personal relationship between Person B and Person C which Mr Baynes asserts Person B wants kept private. “3. Microsoft teams direct private chat message between Aaron Baynes and Person C where Aaron Baynes says “Person B was abusing me all day” or similar message during January or February 2019.” Mr Baynes submits that the conversation history will show that the message was sent at a time when he was being requested by Person B to work longer hours to complete a project. He submits that it will support his position that he was not able to file his unfair dismissal application within the 21-day legislative timeframe as he was subject to abuse from Person B. “4. All expense claims for clothing items that were requested by Person B or Person C during February 2018 to February 2019 - including shoes, dresses and glasses.” Mr Baynes alleges that Person B gifted Person C clothing items as gifts during their relationship. He asserts that the giving of gifts demonstrates favourable treatment of Person C by Person B. He submits that the expense claims will support his application for an extension of time for his unfair dismissal application as it will show that he was under threat from Person B. “5. The documents sought are accommodation arrangements for Person C and Person B’s trip to Sydney Havas Head office in January 2019. This should include room and bed arrangements.” Mr Baynes submits that this class of documents will demonstrate the personal relationship between Person B and Person C and will support his application for an extension of time for his unfair dismissal application as he asserts that Person B was threatening him to keep Person B’s relationship with Person C private which prevented him from filing an application within the legislative timeframe. [4] The Extension of Time Conference/Hearing of Mr Baynes’ unfair dismissal application is listed to be heard on 17 April 2020. Mr Baynes and the Respondent have both filed their materials on the extension of time jurisdictional objection including an Outline of Submissions and Witness Statements. [5] On 25 March 2020, the Respondent filed an Outline of Submissions objecting to the Applicant’s order for the production of documents. The Respondent submits that “the draft order sought by the Applicant will not assist the Commission to inform itself in relation to the matter, pursuant to its power under section 590 of the FW Act.”1 The matter presently before 1 Respondent Outline of Submissions on Applicant’s Application for an Order for Production of Documents, 25 March 2020. -- 2 of 7 -- [2020] FWC 1861 3 the Commission is to determine whether or not to grant Mr Baynes a further period of time for the application for unfair dismissal. The Respondent views that the documents “sought do not amount to evidence relevant to the jurisdiction hearing but are an attempt to discover whether the Applicant has a case at all and therefore amount to a fishing expedition.”2 [6] In order to determine an application for an order for the production of documents it is necessary to consider, briefly at least, the context for which the orders are sought, namely the forthcoming jurisdictional hearing, convened for the purposes of determining whether an extension of time should be granted for the making of Mr Baynes’ unfair dismissal application. Such consideration will inform my own consideration of matters of relevance, etc which need to be applied to Mr Baynes’ application for orders. [7] Consideration of an extension of time requires consideration of whether there are exceptional circumstances taking into account the criteria in s.394(2); namely the reason for the delay; whether the person first became aware of the dismissal after it had taken effect; any action taken by the person to dispute the dismissal; prejudice to the employer (including prejudice caused by the delay); the merits of the application; and fairness as between the person and other persons in a similar position. [8] The Full Bench has said about consideration of these matters that all need to be taken into account: “[38] … the assessment of whether exceptional circumstances exist requires a consideration of all the relevant circumstances. No one factor (such as the reason for the delay) need be found to be exceptional in order to enliven the discretion to extend time. This is so because even though no one factor may be exceptional, in combination with other factors the circumstances may be such as to be regarded as exceptional. [39] So much is clear from the structure of s.366(2), each of the matters needs to be taken into account in assessing whether there are exceptional circumstances. The individual matters might not, viewed in isolation, be particularly significant, so it is necessary to consider the matters collectively and to ask whether collectively the matters disclose exceptional circumstances. The absence of any explanation for any part of the delay, will usually weigh against an applicant in such an assessment. Similarly a credible explanation for the entirety of the delay, will usually weigh in the applicant’s favour, though, as we mention later, it is a question of degree and insight. However the ultimate conclusion as to the existence of exceptional circumstances will turn on a consideration of all of the relevant matters and the assignment of appropriate weight to each.”3 [9] While consideration of the merits of a matter is one of the factors to be considered in an extension of time matter, such consideration is necessarily limited, because the Commission would not ordinarily make at that stage determinations of fact as they relate to the merits of an application. What the Commission may consider is whether the applicant has a sufficient case on the merits. 2 Ibid. 3 Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901. -- 3 of 7 -- [2020] FWC 1861 4 [10] Mr Baynes has filed submissions relating to his request for an extension of time, relying on several reasons that may explain his application being late:  That he was “subject to blackmail, extortion and death threats” with the context of his allegation being that those things came from Person B;  He was “scared to make a claim right away” as Person B had told him he was going to ruin his life;  It became known to him after he left employment that Person B “had begun defaming me and trying to ruin my life by telling a false story” alleging sexual harassment and aggression by the Applicant toward another employee;  He reported matters to the Police, “which has been actioned by the police”; and  The effect of these matters on his mental health, life and ability to feel safe. [11] Some of these matters are resisted strongly by the Respondent as being inconsistent with the truth. The Respondent submits that in relation to the Applicant’s police report that a statement was not made to Victoria Police until January 2020, and with Mr Baynes claiming that his report to the police had been made much earlier, but not actioned by them. It is also noted that the Applicant has not particularised his extremely serious claims or provided anything that would corroborate them. [12] Mr Baynes’ request in this matter is an application pursuant to s.590(2)(c) of the Fair Work Act 2009 and the matter requires determination in accordance with well-settled principles. Documents must be relevant to an issue, and not for the purposes of “fishing” or to test whether a party has a supportable case; relevance does not require that a party demonstrate direct relevance to the contest between the parties, but rather the documents sought must have some apparent relevance to the pleadings as they stand.4 [13] In the exercise of its discretion concerning the issuing of orders to produce documents, the Commission will generally be guided by what applies in courts of law, with the test of relevance applied by courts usually also applied by the Commission.5 Application of the tests requires examination of two questions: “First, does the material sought by the subpoena have an apparent relevance in a descriptive or adjectival sense rather than a substantive sense? Does the subpoena have a legitimate forensic purpose to this extent from the perspective of the party issuing the subpoena? Secondly, does the subpoena cast a serious and unfair burden or prejudice upon the respondent to the subpoena?”6 [14] Consideration of the question of adjectival relevance looks toward the possibility of whether the material sought could reasonably be expected to throw light on some of the issues 4 ANF v VHIA [2011] FWA 8756, at [13]; see also Australian Gas Light Company v Australian Competition & Consumer Commission [2003] FCA 1101, at [8]. 5 Clermont Coal v Brown and Others [2015] FWCFB 2460, at [19]. 6 ANF v VHIA [2011] FWA 8756, at [13]; see also Trade Practices Commission v Arnotts Limited [1989] FCA 248, at [44]. -- 4 of 7 -- [2020] FWC 1861 5 in the principal proceedings.7 The documents must be of a nature capable of being relevant to an issue which may arise for determination in a hearing.8 The concept of relevance for the purposes of production of documents is wider than the concept of relevance for the purposes of admission.9 [15] There is a general presumption that a party will not be required to produce documents where to do so would be oppressive; for an irrelevant collateral purpose;10 or where the application is a “fishing expedition”, in the sense that it is an endeavour not to obtain evidence to support a case, but to discover whether there is a case at all.11 [16] It is apparent from Mr Baynes’ applications of orders for the production of documents is that they would likely not inform the reasons for his delay, and may not even illustrate the strength of his case. They appear to be made for the purposes of illustrating why or how the dispute which led to the end of his employment came about or progressed, rather than illustrating what occurred after he left employment and, critically, why his application is late. Each may be construed to be “fishing” in the sense of gathering information to test whether the Applicant may establish the merits of his case if it proceeds that far. Some of the order sought appears motivated for the gathering of information for a prurient or collateral purpose unrelated to his unfair dismissal application. None of the orders, if made, would appear to enlighten the Commission of the threats alleged to have been made to Mr Baynes; his reaction to them; the circumstances of the Police report or why they did not act sooner. It follows that none of the orders sought would especially assist the Commission in determining whether there were exceptional circumstances for Mr Baynes’ delay in making his unfair dismissal application. [17] Because of these findings about Mr Baynes’ applications it is unnecessary for me to determine the Respondent’s objection that orders for production of some or all of the classes of documents would cause it oppression due to the proximity of next week’s jurisdictional hearing, with public holidays interposed. [18] My consideration of Mr Baynes’ five applications for orders for the production of documents is as follows:  Application 1 – communication between Person A and Person B during Oct 18 in relation to Aaron Baynes Sexually Harassing Person C. I consider both that this is not a matter with adjectival relevant to the question of extension of time and that it is likely fishing.  Application 2 – Expense claims for Professional Scrum Master I certification(s) from scrum.org that were requested by Person B or Person C for 2018. This application lacks adjectival relevance and is fishing. 7 Ibid, at [13]. 8 Clerks (Alcoa) Case (1988) Print H2892. 9 Santos Ltd & Others v Pipelines Authority of SA [1996] SASC 5628, [87], cited in Australian Municipal, Administrative, Clerical and Services Union v Moreland City Council [2017] FWC 3283, [35]. 10 Re Trade Practices Commission v Arnotts Limited Biscuits Limited [1989] FCA 248, [38]. 11 Clerks (Alcoa) Case (1988) Print H2892. -- 5 of 7 -- [2020] FWC 1861 6  Application 3 – Microsoft teams direct private chat message between Aaron Baynes and Person C where Aaron Baynes says “Person B was abusing me all day” or similar message during January or February 2019. This application lacks adjectival relevance and is fishing.  Application 4 – All expense claims for clothing items that were requested by Person B or Person C during February 2018 to February 2019 - including shoes, dresses and glasses. This application lacks adjectival relevance and is fishing or is motivated by a collateral purpose.  Application 5 – accommodation arrangements for Person C and Person B’s trip to Sydney Havas Head office in January 2019. This application lacks adjectival relevance and is fishing or is motivated by a collateral purpose. [19] I decline to grant the application for the order for the production of any of the five classes of documents sought by Mr Baynes. Consideration of the material presently before the Commission does not disclose that any of the materials that are the subject of Mr Baynes’ applications have apparent relevance to the matters to be determined by the Commission. Further, I consider that each of the classes of documents sought by Mr Baynes are for the purposes of a “fishing expedition” or are sought by him for a collateral purpose other than in support of his application for an extension of time for an unfair dismissal remedy. Disclosure of certain classes of the documents may lead to prejudice to the Respondent by drawing into the public arena matters that have insufficient relevance to these proceedings, but with the collateral possibility of consequential prejudice to the interests of the company or persons employed by it. COMMISSIONER Appearances: Mr A. Baynes, Applicant appearing for himself Mr A. Barwick, Solicitor appearing for the Respondent Hearing details: 2020; Melbourne. 8 April (via telephone). -- 6 of 7 -- [2020] FWC 1861 7 Printed by authority of the Commonwealth Government Printer <PR718148> -- 7 of 7 --