[2013] FWC 5593 |
FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Carol Haslam
v
Fazche Pty Ltd T/A Integrity New Homes
(U2013/1575)
COMMISSIONER WILSON |
MELBOURNE, 12 AUGUST 2013 |
Termination of employment – permission to appear – admission of evidence.
[1] This decision refers to two issues that are preliminaries to the hearing I am about to conduct in the above matter, which commences on 12 August 2013. The issues for determination are whether permission should be given to the Respondent, Fazche Pty Ltd trading as Integrity New Homes, to be represented in the hearing by a lawyer; and whether certain evidence should be admitted to the hearing.
Permission for legal representation
[2] In the course of a conference with the parties held on 8 August 2013, I granted permission for the Respondent to be represented by a lawyer for the reasons that follow.
[3] The Applicant, Ms Haslam is unrepresented, and objected to permission being granted to the employer to be legally represented in these proceedings.
[4] Mr Manos, of Counsel, referred to the provisions of s.596 of the Fair Work Act, which both allows and constrains, the granting of permission. Mr Manos argued that permission should be granted by me for the reason contemplated in s.596(2)(a), namely that the grant of permission “would enable the matter to be dealt with more efficiently, taking into account the complexity of the matter”. With respect to the “complexity” of the matter, he referred to the threshold issues that need determination (of whether the Respondent is a small business employer within the meaning of the Fair Work Act and of whether Ms Haslam resigned). He argued the matter would run more efficiently with a grant of permission to his client. Mr Manos also pointed to the Directions in this matter made by Commissioner Hampton on 27 June 2013 which went to the subject to representation. In those Directions, the Applicant was directed to file by 12 July 2013 her views (if any) about legal representation for the employer, however no such views were expressed.
[5] I noted Ms Haslam in the conference and in her correspondence to be articulate and well able to express her views. After hearing Ms Haslam’s views on the request, I granted permission to the employer to be legally represented, but in doing so noted that I expected the cooperation of Counsel in the event that I needed to assist the Applicant in the presentation of her case or in the framing of questions in the course of the taking of evidence.
Admission of evidence
[6] In an email to the Commission from Ms Haslam dated 6 August 2013, Ms Haslam seeks permission to bring forward certain evidence to the hearing commencing on 12 August 2013. The evidence comprises recordings made of two separate meetings with two managers of the Respondent. The recordings were made without the knowledge of the two managers and are sought to be admitted by the Applicant in response to what she has read in the two people’s witness statements. Ms Haslam contends in relation to the witness statements that “false statements have been made which could be clarified by the recordings of meetings”.
[7] In the conference of 8 August 2013, Ms Haslam was directed to provide particulars of the false statements she asserts have been made, and to identify the way in which the recordings might identify the statements as false. Ms Haslam consequently provided information to the Commission which went part of the way to satisfying my direction.
[8] I have not heard the recordings in forming my decision about the admissibility of the recordings.
[9] Integrity New Homes opposes the admission of the recordings. Mr Manos, for the Respondent, concedes the question is a matter for my discretion, however argues that the recordings were made unlawfully in contravention of the SA Listening and Surveillance Devices Act 1972, and that a combination of relevant provisions of the Evidence Act 1995 (Cth), the Fair Work Act 2009 (Cth) and certain relevant case law meant that I should exercise a discretion not to allow the admission of the recordings into evidence. Mr Manos referred particularly to the decision in the matter of Thomas and Another v Nash 1, in which Doyle CJ discusses the application of the SA Listening and Surveillance Devices Act.
[10] In ruling on the admissibility of the recordings, I need to have regard especially to the relevant provisions of the Fair Work Act and the Evidence Act.
[11] The Fair Work Act gives wide discretion to the Commission to inform itself in ways it sees fit. It is obliged to have regard to the Objects of the Act and to certain principles, including the need to take into account “equity, good conscience and the merits of the matter” 2 and provides;
591 FWC not bound by rules of evidence and procedure
The FWC is not bound by the rules of evidence and procedure in relation to a matter before it (whether or not the FWC holds a hearing in relation to the matter).
[12] The Evidence Act relevantly provides;
138 Discretion to exclude improperly or illegally obtained evidence
(1) Evidence that was obtained:
(a) improperly or in contravention of an Australian law; or
(b) in consequence of an impropriety or of a contravention of an Australian law;
is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained.
(2) ...
(3) Without limiting the matters that the court may take into account under subsection (1), it is to take into account:
(a) the probative value of the evidence; and
(b) the importance of the evidence in the proceeding; and
(c) the nature of the relevant offence, cause of action or defence and the nature of the subject-matter of the proceeding; and
(d) the gravity of the impropriety or contravention; and
(e) whether the impropriety or contravention was deliberate or reckless; and
(f) whether the impropriety or contravention was contrary to or inconsistent with a right of a person recognised by the International Covenant on Civil and Political Rights; and
(g) whether any other proceeding (whether or not in a court) has been or is likely to be taken in relation to the impropriety or contravention; and
(h) the difficulty (if any) of obtaining the evidence without impropriety or contravention of an Australian law.
Note: The International Covenant on Civil and Political Rights is set out in Schedule 2 to the Australian Human Rights Commission Act 1986.
[13] While the Fair Work Commission is not bound by the rules of evidence and procedure 3, that is not to say the Commission should not have regard to such rules in making its decisions, and for good reason. In this regard, Commissioner Thatcher observed the following;4
Section 591 of the Act provides that FWA is not bound by the rules of evidence in relation to a matter before it. However that does not mean that the rules of evidence are irrelevant. In its decision in Re: Michael King 5the Full Bench agreed with the following observation of the Industrial Commission of New South Wales in Court Session in PDS Rural Products Ltd v Corthorn, which relevantly included:
“... it is correct to say, as the commissioner did, that he was not bound to observe the rules of law governing the admissibility of evidence (s 83). It should be borne in mind that those rules are founded in experience, logic, and above all, common sense. Not to be bound by the rules of evidence does not mean that the acceptance of evidence is thereby unrestrained. What s 83 does do in appropriate cases is to relieve the Commission of the need to observe the technicalities of the law of evidence. ....” 6
[14] In deciding the application to admit the recordings into evidence, I regard the proper approach is for me to consider the provisions of the Evidence Act, but within the context of the provisions of the Fair Work Act. In doing so, I follow the decision of Commissioner Thatcher as expanded on in the matter above. 7
[15] The issue for determination is whether a recording of a conversation made without the knowledge of the other party to a conversation may be admitted. I am satisfied that because the recordings were made without the knowledge of the other parties to the conversations they were potentially made in contravention of the applicable SA legislation and that they are therefore not routinely available for admission to the evidence. In the absence of any evidence to the contrary, it follows the recordings were most likely obtained improperly or in contravention an Australian law.
[16] Commissioner Thatcher noted that in relation to the desirability or otherwise of admitting evidence which may have been improperly obtained, he would, as will I;
“start from a position that such evidence is not to be admitted and that the onus is on the party seeking admission to satisfy FWA that the desirability of admitting the evidence outweighs the undesirability of admitting it.” 8
[17] In making my decision, I have taken into account the matters indicated above, and especially have had regard to the probative value of the recordings, together with their potential importance to the Applicant in these proceedings.
[18] In relation to these latter considerations, all I have before me is the information Ms Haslam supplied in response to my directions given on 8 August 2013. Based upon this information, I find;
a. the recordings potentially assist, but are unlikely to determine, Ms Haslam’s claim that she was dismissed and did not resign (noting that Ms Haslam will have the opportunity to put to the witnesses her contentions in the ordinary course of cross-examination);
b. the recordings potentially assist, but are unlikely to determine, any claim she may make the witnesses are being untruthful or otherwise have diminished credibility in these proceedings (noting that Ms Haslam will have the opportunity to put to the witnesses her contentions in the ordinary course of cross-examination);
c. the recordings appear unlikely to assist Ms Haslam’s defence to the Respondent’s claim that the employer was a small business employer within the meaning of the Fair Work Act.
[19] I am not persuaded that the desirability of admitting the evidence outweighs the undesirability of admitting it. I therefore determine that the two recordings will not be admitted to evidence in the course of these proceedings.
COMMISSIONER
Appearances:
Ms C Hazlam, self represented
Ms N Nemer, solicitor, and Mr A Manos of Counsel for the Respondent
Hearing details:
2013.
Melbourne:
August 8.
1 [2010] SASC 153.
2 Fair Work Act 2009, s.578(b).
3 Fair Work Act 2009, s591.
4 Wayne Stuart Walker, v Mittagong Sands Pty Limited T/A Cowra Quartz, [2010] FWA 9440, at [63].
5 Print S4213, 17 March 2000, per Ross VP, Williams SDP, Hingley C.
6 (1987) 19 IR 153 at 155, per Fisher P, Bauer & Glynn JJ.
7 Walker v Mittagong Sands, from [68].
8 Walker v Mittagong Sands, from [74].
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