Cunningham v Gympie Regional Council [2021] QIRC 387

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION CITATION: Cunningham v Gympie Regional Council [2021] QIRC 387 PARTIES: Cunningham, Darren (Applicant) v Gympie Regional Council (Respondent) CASE NO: B/2021/48 PROCEEDING: Application in existing proceedings DELIVERED ON: 10 November 2021 HEARING DATES: On the papers MEMBER: McLennan IC HEARD AT: Brisbane ORDERS: 1. The Form 4 - Application in existing proceedings filed by the Applicant on 12 October 2021 is dismissed. 2. The stay on the Notice of non-party disclosure dated 5 October 2021 is lifted pursuant to r 64G(2)(a) of the Industrial Relations (Tribunals) Rules 2011 (Qld). 3. The South Burnett Regional Council is to disclose the documents sought in the Notice of non-party disclosure dated 5 October 2021 to the Respondent within 7 days. CATCHWORDS: WORKERS' COMPENSATION APPEAL – DISCLOSURE – application to strike out Form 29 Notice of non-party disclosure – whether documents sought are relevant to issue in the -- 1 of 9 -- 2 proceeding – whether documents sought are already in the possession of the respondent LEGISLATION: CASES: Industrial Relations Act 2016 (Qld) s 475, s 477 Industrial Relations (Tribunals) Rules 2011 (Qld) r 64B, r 64E, r 64F, r 64G Gympie Regional Council Certified Agreement 2018 cl 7 Queensland Local Government Industry (Stream A) Award 2017 cl 20 Commissioner of Police (NSW) v Tuxford [2002] NSWCA 139 Goldsmith v Sandilands [2002] HCA 31 Mullins v Workers' Compensation Regulator; Ex parte Drake International Pty Ltd (No 2) [2020] QIRC 003 Robson v REB Engineering Pty Ltd [1997] 2 Qd R 102 Rubin v Bank of Queensland Ltd [2010] QSC 175 Weston and Parer v State of Queensland (Department of Justice and Attorney-General) (No. 4) [2016] QIRC 75 Reasons for Decision Background [1] On 5 October 2021, Gympie Regional Council (the Respondent) filed a Form 29 Notice of non-party disclosure with the Industrial Registry (the Notice). [2] The Notice sought to compel South Burnett Regional Council (SBRC) to produce various documents relating to Mr Darren Cunningham's employment (the Applicant). The Respondent contends it requires the documents for the future substantive hearing of Mr Cunningham's claim to recover unpaid wages from the Respondent (the Proceeding). -- 2 of 9 -- 3 [3] On 12 October 2021, Mr Cunningham objected to the production of all documents mentioned in the Notice pursuant to r 64E of the Industrial Relations (Tribunals) Rules 2011 (Qld) (the Rules) (the Objection). [4] The Objection stayed the operation of the Notice by virtue of r 64F of the Rules. [5] Rule 64G of the Rules prescribes that "Within 7 days after service of an objection under rule 64E, the party may apply to the industrial tribunal for a decision about the objection." Pursuant to r 64G(2), the industrial tribunal may make an order it considers appropriate including, but not limited to, an order lifting the stay, varying the notice or setting aside the notice. [6] The reasons for the Objection are contained within a Form 4 - Application in existing proceedings (the Application) in which Mr Cunningham seeks an order that "The Commission strike out the application for Non-party production filed by Gympie Regional Council as the production of such document(sic) lacks relevance to the proceedings."1 The Proceeding [7] On 7 June 2021, Mr Cunningham filed a Form 15 Application to recover unpaid wages in the sum of $50,000 pursuant to ss 475(1)(a) and 476 of the Industrial Relations Act 2016 (Qld) (the IR Act). [8] In submissions filed 25 August 2021, Mr Cunningham contended the following: • Mr Cunningham's employment with the Respondent was subject to the terms of the Queensland Local Government Industry (Stream A) Award 2017 (the Award) and the Gympie Regional Council Certified Agreement 2018 (the Certified Agreement).2 • The Award "provides that credit shall be allowed at the commencement of an employees (sic) for sick leave accrued with a previous local government employer or employers".3 Mr Cunningham referred to cl 20(e)(ii) and (iii) of the Award in that regard. • Mr Cunningham was previously employed with Ipswich City Council (ICC) and held a personal leave balance at the time of his resignation which transferred to his employment with the Respondent. 1 Form 4 - Application in existing proceedings, 12 October 2021, 3. 2 Submissions of the Applicant, 25 August 2021, [4]. 3 Ibid [5]. -- 3 of 9 -- 4 • On 16 June 2020, Mr Cunningham was made redundant.4 Clause 13.3 of Mr Cunningham's contract of employment (the Contract) with the Respondent states: In the event of termination of the Employee's employment on the basis of redundancy, then, in addition to all accumulated allowances and entitlements set out in the Contract of employment including but not limited to long service leave, annual leave, sick leave and accrued time, the employee shall be entitled to a severance payment equal to an amount of two (2) weeks' pay for every year of continuous service ending on the termination of this Contract within Queensland Local Government with a minimum payment of twenty-six (26) weeks up to a maximum payment of fifty-two (52) weeks.5 • Despite the unambiguous wording of cl 13.3 as set out above, the Respondent did not make payment for Mr Cunningham's accumulated sick leave. [9] In submissions filed 9 September 2021, the Respondent contended the following: • Although the Respondent recognised the ICC accrued sick leave, the usage, and payment for that sick leave as well as any sick leave accrued during employment with the Respondent was subject to the Respondent's "policies and industrial arrangements."6 • There was no understanding or agreement that the ICC accrued sick leave would be able to be accessed by Mr Cunningham other than when he was ill while employed. Further, there was no understanding or agreement that the Respondent would pay out any unused sick leave accrued during employment at ICC upon termination of Mr Cunningham's employment.7 • Mr Cunningham's employment was subject to the Certified Agreement. Mr Cunningham is not entitled to a payout of sick leave pursuant to cl 30.4 of the Certified Agreement because although he was employed prior to certification, he had not accrued five years' service from the commencement date of his employment.8 This position is not altered by the Contract because: - The only conferred entitlement relating to sick leave is the entitlement to 15 days' sick leave each year as outlined in cl 7.3 of the Certified Agreement; - The circumstances in which sick leave would be a benefit payable upon redundancy must be qualified by the Award and Certified Agreement; and 4 Submissions of the Applicant, 25 August 2021, [11]. 5 Contract of Employment between Gympie Regional Council and Darren Cunningham, 29 January 2019. 6 Respondent's Submissions, 9 September 2021, [7]-[8]. 7 Ibid [8]. 8 Ibid [15]. -- 4 of 9 -- 5 - The Contract makes no reference to the ICC accrued sick leave and there was no agreement that sick leave was a contractual entitlement.9 [10] From the outline above, I have concluded that the issue in the Proceeding is whether Mr Cunningham is entitled to have his accrued but untaken sick leave paid out by the Respondent. This issue involves consideration of whether the amount sort is payable, whether it is unpaid and whether or not it is appropriate to grant the relief sort. The Notice [11] The documents sought in Annexure A to the Notice are reproduced below: No. Description 1 Darren Cunningham's employment contract with South Burnett Regional Council. 2 All documents, including written correspondence, between South Burnett Regional Council and Darren Cunningham regarding his sick leave balance upon commencement of employment at South Burnett Regional Council. 3 All documents, including written correspondence, that refers to any sick leave recognised by South Burnett Regional Council that was accrued during Darren Cunningham's employment at Gympie Regional Council or Ipswich City Council. [12] On p 2 of the Notice, the Respondent contends that Mr Cunningham "has declined to provide any explanation or confirmation about whether any part of his sick leave balance at the end of his employment with the Respondent has been recognised, for any purpose, by his new employer." The Respondent submits the documentation is relevant because if Mr Cunningham "has secured a transfer of the entitlement to his current employment (using an Award mechanism which was available to him and his new employer) he would not be entitled to 'double dip' in relation to the entitlement."10 The Objection [13] Mr Cunningham objected to production of the documents on the following grounds: • The documents lack relevance to the Proceeding pursuant to r 64E(4)(b) of the Rules;11 and • The Respondent is already in possession of the information it seeks.12 [14] I have determined not to approach the writing of this Decision by summarising the entirety of the submissions made, but will instead refer to the parties' key positions in my consideration of each question to be decided. SBRC was invited to file written 9 Respondent's Submissions, 9 September 2021, [14]-[17]. 10 Form 29 - Notice of non-party disclosure, 5 October 2021, 2. 11 Form 4 - Application in existing proceedings, 'Attachment A: Objection to production', 12 October 2021, [6]. 12 Applicant's Submissions, 18 October 2021, 4 [22]. -- 5 of 9 -- 6 submissions as an interested party if they wished to. No submissions were filed by SBRC. Are the documents relevant to the Proceeding? [15] Rule 64B of the Rules provides that a party to a proceeding may require a person who is not party to the proceeding to produce a document that is: (a) directly relevant to a matter in issue in the proceeding; and (b) in the possession or under the control of the non-party; and (c) that is a document the non-party could be required to produce at the hearing for the proceeding. [16] In Mullins v Workers' Compensation Regulator; Ex parte Drake International Pty Ltd (No. 2), Commissioner Black considered that test (emphasis added, citations removed): In Xstrata Queensland Ltd v Santos Ltd & Ors, McMurdo J was asked to consider the distinction between the test of relevance under the general law and the requirement of the Uniform Civil Procedure Rules 1999 (Qld) (UCRP) which is that only directly relevant documents must be disclosed. In this respect, McMurdo J said that "a document is directly relevant in this sense only if it tends to prove or disprove an allegation in issue in the proceedings."13 [17] In Robson v REB Engineering Pty Ltd, Demack J considered the term "directly relevant": My opinion is that the word "directly" should not be taken to mean that which constitutes direct evidence as distinct from circumstantial evidence. Rather, "directly relevant" means something which tends to prove or disprove the allegation in issue.14 [18] In Goldsmith v Sandilands, the High Court of Australia considered when evidence becomes relevant: Evidence is relevant if it could rationally affect, directly or indirectly, the assessment of the probability of the existence of a fact in issue in the proceeding.15 [19] Mr Cunningham submits there is no allegation of "double dipping". Rather, the allegation is that the Respondent has not paid Mr Cunningham an accrued but unused amount of personal leave when he was made redundant, to which he is entitled.16 In that regard, Mr Cunningham referred to Commissioner of Police (NSW) v Tuxford in which it was held: The opponents were not entitled to procure the issue of the subpoena for the purpose of fishing, that is, endeavouring not to obtain evidence to support their case, but to discover whether they had a case at all, or to discover the nature of the case of the defendant.17 13 [2020] QIRC 003. 14 [1997] 2 Qd R 102, 105. Referred to in Rubin v Bank of Queensland Ltd [2010] QSC 175. 15 [2002] HCA 31. 16 Applicant's Submissions, 18 October 2021, 3 [15]. 17 [2002] NSWCA 139. -- 6 of 9 -- 7 [20] Mr Cunningham argues that if SBRC "has credited the Applicant any entitlement (which they have not) it would have been done so at its own volition, and not as a result of the crediting provision in the Award."18 The Respondent argues that "if there has been any recognition of entitlements (compulsory or voluntary) it is a relevant matter for the Commission to consider."19 The Respondent submits that despite multiple opportunities, Mr Cunningham has failed to conclusively answer whether any part of his accrued but untaken sick leave was recognised by SBRC.20 [21] I agree with the Respondent that the status of recognition of such sick leave accruals is relevant to the Commission's consideration of the substantive matter. As such, the provision of the requested documents will ensure that is either ruled out or can be considered.21 The primary question to be decided is whether or not Mr Cunningham has an entitlement to the alleged unpaid amount. Should that question be answered in the affirmative, my mind will turn to a corresponding order granting the relief sought. Section 477(1) of the IR Act provides (emphasis added): (1) On hearing the application, the commission or magistrate— (a) must order the employer to pay the employee— (i) the amount the commission or magistrate finds to be payable and unpaid to the employee for the 6 years before the date of the application; and (ii) an amount the commission or magistrate considers appropriate, based on the return that would have accrued in relation to the contributions had it been properly paid to the approved superannuation fund; and (b) may make an order for the payment despite an express or implied provision of an agreement to the contrary; and (c) may order the payment to be made on the terms the commission or magistrate considers appropriate. [22] If it is found that the entitlement has been transferred or there is some other special arrangement with SBRC with respect to the accrued leave, it would be unreasonable not to consider that information - as that information may affect my view on whether it is appropriate to order the full amount of relief sought. I accept that the Respondent is engaging in a legitimate line of inquiry that will rationally affect the assessment of what order should be made in circumstances where the entitlement is made out on the facts. [23] The documentation subject of the Notice will tend to prove or disprove whether the amount is payable and unpaid and hence, whether or not the relief sort should be ordered. On that basis, I conclude the documents sought are directly relevant to an issue in the Proceeding. 18 Applicant's Submissions in Reply, 1 November 2021, [15]. 19 Respondent's Submissions, 27 October 2021, 2 [9](a). 20 Ibid [9](c). 21 Ibid. -- 7 of 9 -- 8 Is the Respondent already in possession of the documents? [24] Clause 20(e)(i) of the Award states: (i) Notwithstanding the provisions of clause 20(d), credit shall be allowed at the commencement of an employee's employment for sick leave accumulated with a previous local government employer or employers provided that: a. the employee's service as between such employers has been continuous; and b. the employee at the time of engagement produces a certificate from the previous employer certifying the amount of sick leave accumulated to the employee's credit. [25] Mr Cunningham contends that had he requested his sick leave be credited to SBRC, the Respondent would have had to provide a certificate pursuant to cl 20(e)(i) of the Award. Mr Cunningham concludes that as the Respondent has not provided any certificate, the Respondent would already be aware that Mr Cunningham has not had any sick leave credited to his new employment. [26] Clause 20(e)(ii)(A) of the Award states: Continuous service is defined to include service with an employer or with more than one employer which has been continuous except for the employee having been dismissed or stood down, or by the employee having terminated their own service with the employer, provided that the employee hall have been re-employed by that employer or some other employer within a period not exceeding the combination of any period or unused annual leave when the employee ceased employment with their previous employer, plus a further period of four weeks… [27] Mr Cunningham contends the Respondent is aware he commenced employment with SBRC on 7 September 2020 and is therefore aware that Mr Cunningham is not entitled to have personal leave credited to his new employment. The Respondent disputed this assertion on the basis that prior to reading the commencement date in Mr Cunningham's submissions filed 18 October 2021, no confirmation had been given by Mr Cunningham or Queensland Services, Industrial Union of Employees.22 [28] I disagree with Mr Cunningham that the information sought by the Respondent in order to satisfy their enquiry of "double dipping" is already in the Respondent's possession. That premise is based largely on the assumption that SBRC is operating in accordance with the Award. Although compliance with the Award is to be expected, it is not guaranteed that SBRC has required a certificate from the Respondent prior to allowing credit. Further, it is not guaranteed that SBRC has not waived the requirement for continuous service or has not voluntarily recognised all or any part of Mr Cunningham's sick leave entitlement. 22 Respondent's Submissions, 27 October 2021, 2 [9](b). -- 8 of 9 -- 9 Conclusion [29] For the reasons outlined above, the grounds for the Application to strike out the Notice are rejected. I will lift the stay and require SBRC to provide the documents subject of the Notice within 7 days from the release of this Decision. [30] I order accordingly. Orders: 1. The Form 4 - Application in existing proceedings filed by the Applicant on 12 October 2021 is dismissed. 2. The stay on the Notice of non-party disclosure dated 5 October 2021 is lifted pursuant to r 64G(2)(a) of the Industrial Relations (Tribunals) Rules 2011 (Qld). 3. The South Burnett Regional Council is to disclose the documents sought in the Notice of non-party disclosure dated 5 October 2021 to the Respondent within 7 days. -- 9 of 9 --