[2016] FWC 5006


Fair Work Act 2009

s.394 - Application for unfair dismissal remedy




Application for relief from unfair dismissal - production of documents.

[1] The Fair Work Commission has received an application by an Applicant (Applicant) seeking a remedy for alleged unfair dismissal by a Respondent (Respondent or Employer).

[2] On 4 February 2016, the Respondent forwarded to the Applicant notice of termination of his employment. The relevant parts of the correspondence are as follows:

[3] The Applicant has sought the production of documents, pursuant to s.590(2)(c) of the FW Act, on 10 and 11 May 2016. Following communication between the parties and a conference in the Commission, the classes of documents sought have been reduced to the following:

[4] Due to the exchange of information between the parties and clarification, the Applicant no longer seeks an order with respect to the documents in 2, 5 and 6.

[5] The Respondent objects to an order being made by the Commission with respect to the documents in 1, 3 and 4 on the basis that they are legally privileged (LPP) and were created for “the dominant purpose of receiving legal advice and in contemplation of litigation”. 1 With respect to the documents in 4, the Respondent asserts, with little force, that “it would be oppressive”2 for the Respondent to comply with such an order as sought.

[6] Further, and finally, the Respondent submitted that the order for the documents was nothing more than a “fishing expedition”. That contention will be discussed later in this decision.

[7] In view of the Applicant seeking an order for such documents and the Respondent’s LPP objection, the hearing into the substantive merits of the application was deferred until the LPP objection is determined.

[8] In view of the nature of the unfair dismissal, these interlocutory proceedings and documentary material provided to the Commission, I find that representation by lawyers would enable the matter to be dealt with efficiently. Further, I find that it would be unfair not to allow the parties to be represented by lawyers because the parties are unable to represent themselves effectively. Having been satisfied that the requirements of s.596(2) of the FW Act had been met, permission of the parties to be represented by lawyers was granted.

[9] At the hearing into the documents sought, and its resistance on LPP grounds, the Applicant was represented by Mr S Heathcote of Counsel.

[10] The Respondent was represented by Mr I Neil SC. Evidence on behalf of the Respondent was given by Witness B, the Respondent’s Workplace Relations Advisor and the person who carried out an investigation into the Applicant’s conduct.

[11] This is my decision and reasons for decision with respect to the order for documents sought by the Applicant in 1, 3 and 4 in paragraph [3] above.


[12] The Applicant commenced employment with the Respondent in January 2011 as a member of cabin crew.

[13] In or around June 2014, the Respondent promoted the Applicant to Cabin Supervisor.

[14] As a Cabin Supervisor, the Applicant was responsible for the supervision of work undertaken by cabin crew both on the ground and in the air.

[15] Over the course of his employment, the Applicant generally received positive feedback regarding his performance.

[16] The Applicant received two letters of commendation by the Respondent.

[17] In late 2011, the Applicant was the subject of a complaint by a co-worker for which he received a written warning.

[18] The Applicant and Witness A entered into a sexual relationship in April/May 2014. Witness A is also an employee of the Respondent.

[19] The Applicant and Witness A, as part of their relationship, sent each other sexually explicit messages and images.

[20] The sexual relationship between the Applicant and Witness A ceased in or around December 2014. However, it appears that both persons continued to send, or receive, sexually explicit text messages from each other.

[21] In May 2015, Witness A sent the Applicant three (3) photographs of herself. Witness A was naked in each of the photographs.

[22] In July 2015, Witness A sent the Applicant four (4) photographs and two (2) short videos of herself.

[23] On 29 October 2015, Witness A made an Equal Employment Opportunity (EEO) complaint to the Respondent which, in turn, led to an interview on 2 November 2015 with a Workplace Relations Advisor but not Witness B. Witness B subsequently carried out an investigation into the complaint.

[24] For my purposes, the essence of Witness A’s EEO complaint is that the Applicant was showing other employees of the Respondent photographs and videos of Witness A. Further, it is alleged that the Applicant made comments about Witness A to other work colleagues.

[25] On 11 November 2015, the initial Workplace Relations Advisor contacted Witness B and referred the EEO complaint to her for investigation.

[26] Witness B’s evidence is that she immediately began the investigation.

[27] Witness B’s written evidence is as follows:

[28] On 18 December 2015, Witness B forwarded to the Applicant, correspondence which commences:

[29] On 31 December 2015, the Applicant was advised of further allegations that had arisen during the course of the Respondent’s investigation.

[30] On 4 February 2016, the Applicant was summarily dismissed for serious misconduct.


Order 1

[31] There is no dispute that Witness B prepared, in the course of her investigation, an “Investigation Summary”. I am unaware of whether there are any drafts of the summary.

Order 3

[32] Witness B gave evidence that she conducted a number of interviews during her investigation and kept a record of those interviews. 3

Order 4

[33] Witness B gave evidence that in the course of her investigation, she created and received a number of emails associated with the conduct of her interviews. 4



[34] Both parties agreed that the principles set out by Her Honour Kenny J in The Commissioner of Taxation v Pratt Holdings Pty Ltd (Pratt) [2005] FCA 1247 at paragraph [30] are apposite. No objection was taken to Mr Heathcote’s short but, as he describes, incomplete summary of the principles as follows:

[35] Both parties also referred to the Decision of Kovacic DP in Kirkman v DP World Melbourne Ltd [2016] FWC 605.



[36] The power of the Commission to order the production of documents can be found at s.590(2)(c) of the FW Act.

[37] In exercising its discretionary power pursuant to s.590(1) of the FW Act, the Commission must do so “in relation to a matter before it in such a manner as it considers appropriate”.

[38] Further, and importantly, when exercising its discretionary power pursuant to s.590(1), the Commission must do so in a manner which is fair and just and is quick, informal and avoids unnecessary technicalities 5.

[39] The matter before the Commission is an Applicant who has been summarily dismissed for the reasons set out in paragraph [2].

[40] Due to the manner in which this application for the production of documents has come before the Commission, I have already received the:

[41] Section 387 of the FW Act sets out the matters which the Commission must take into account in determining whether a dismissal was “harsh, unjust or unreasonable”.

[42] Section 387(a) of the FW Act essentially asks the question whether there was a valid reason for the employee’s termination of employment.

[43] From the material provided by the parties, the Applicant was terminated due to his conduct.

[44] When the reason for the dismissal relates to the employee’s conduct, it is necessary for the Commission to determine, on the balance of probabilities, whether the alleged conduct occurred, and if so, whether it was a sufficient reason for termination 6. Further,

[45] Accordingly, it is necessary and fundamental for the Commission to determine whether the alleged conduct took place.

[46] The Applicant’s Outline of Argument states:

[47] The material submitted to the Commission appears, at this time, to demonstrate that the Applicant’s dismissal can be reduced to whether there was a valid reason for his termination of employment and an argument of comparability of treatment. This is expressed by the Applicant in his Outline of Argument as follows:

Relevance of documents sought

[48] The Applicant was terminated following an investigation into various allegations.

[49] The Applicant, it appears, has confined his order for the production of documents only to the investigation which led to his dismissal.

[50] In my view, from the material provided, this request for documents is not a “fishing expedition”, but appropriately narrow, and relevant, to his dismissal.


[51] The value of the documents sought by the Applicant can be considered as follows.

[52] Firstly, the documents presumably form part of the “foundation” that led to the allegations being put to the Applicant and seeking his response.

[53] Secondly, the documents led to the Respondent concluding:

[54] In summary, the allegations were serious and found, on the balance of probabilities, to be proved by the Respondent’s decision maker. It would appear that the Respondent acted on this material, and accordingly, the value of the documents sought by the Applicant appear to be relevant, prominent and of high value. Documents and which ultimately led to the Applicant’s dismissal.


[55] Witness A made an EEO complaint on 27 October 2015.

[56] The investigation into the complaint commenced on 11 November 2015.

[57] Putting aside the proposed witness statement of Witness A, the remaining witnesses are proposing to give evidence in relation to events alleged to have occurred on:

[58] The witness evidence, to be given in the substantive hearing, is all dated 17 June 2016.

[59] The Commission has no criticism of the timeliness of the witness statements. However, the fact is that there is an untimeliness of the events alleged to have occurred in paragraph [57] above did not come to light until sometime after 11 November 2015 (with the exception of 27 November 2015).


[60] At the initial interview with the Respondent’s Workplace Relations Advisor on 2 November 2015, it sets out that the EEO complaint is to be, “investigated in accordance with [Respondent’s] policies, and any relevant enterprise agreement”.

[61] I have been provided with the Respondent’s Code and EEO policies, however, there is no reference to LPP. Consequently, I am unsure whether LPP is part of the investigation process or not.

[62] Further, it states that the “Investigator may also have to provide details of your [Witness A’s] complaint to any witnesses to establish whether they can corroborate a particular version of events”. I am unsure whether this has occurred, and if so, whether Witness B in doing so, waived privilege.

[63] Finally, having read the Record of Interview of 2 November 2015, Witness A states that she was alerted to the Applicant showing photographs to other crew members by a “friend”. This “friend” encouraged Witness A to “come forward”. This “friend” is a proposed witness and has provided the Commission with a written witness statement.

[64] I now turn to the Respondent’s LPP argument.



[65] The Respondent submits that its Workplace Relations Advisor (Witness B) “believed that there was the possibility of legal proceedings arising in the future in relation to this matter…and decided to get legal advice on behalf of the Respondent from the Respondent’s in-house employment law counsel”. 8

[66] For this submission, the Respondent relies upon the evidence of Witness B.

[67] In the course of the investigation, Witness B interviewed a number of the Respondent’s employees in relation to the EEO complaint. The prevailing purpose for which these documents were produced was to obtain legal advice on behalf of the Respondent from [in-house counsel] in relation to the conduct of the investigation generally and whether the allegations could and should be put to the Applicant at the conclusion of the investigation” 9 (my emphasis).

[68] For this submission the Respondent relies upon the evidence of Witness B.

[69] Throughout the course of the investigation, Witness B states that she, “sought and obtained legal advice from [in-house counsel], including by using the investigation summary and records of interview”. 10

[70] In conclusion, the Respondent states “as such, the investigation summary and records of interview were produced for and used to obtain legal advice from the Respondent’s in-house counsel over the course of the investigation, and therefore subject to legal professional privilege” 11 (my emphasis).


[71] The Applicant submits:


[72] The Respondent carries the onus of establishing its claim for LPP, whether by “evidence as to the circumstances in which the documents were brought into existence, reference to the nature of the documents, or by argument”. 12

[73] Witness B commenced working for the Respondent in July 2006.

[74] Witness B has 15 years’ experience in human resources, including internal complaints.

[75] In her current role, Witness B’s core responsibilities include “…assisting leaders with disciplinary matters and conducting investigations into complaints made by employees in relation to various workplace relations issues, such as Equal Employment Opportunity (EEO) complaints”. 13

[76] Witness B has given written evidence that on her initial review of the EEO complaint, she would have to interview a number of witnesses and, “I also thought at that time that potential legal proceedings in relation to this matter could arise in the future, whether by the Applicant or some other party, depending on the outcome of the investigations, and I wanted to get legal advice on behalf of [Respondent] from [in-house counsel] in relation to those possible proceedings”. 14

[77] In cross examination, Witness B gave evidence that:

[78] Finally, Witness B was unable to say approximately on how many of the 50 investigations she obtains legal advice. In evidence, Witness B stated that it was not every investigation, nor was it just the Applicant’s investigation. When asked whether it was more than 10 investigations, she preferred to not speculate but advised that it was “not many”. 29

[79] Overall, after listening to Witness B’s evidence, I had some unease both with respect to her evidence, examination in chief and cross examination. If Witness B only seeks legal advice relatively on few occasions, her evidence was hesitant and unconvincing as to how, when and for what purpose she was seeking legal advice.

[80] In Pratt Holdings Pty Ltd v Commissioner of Taxation [2004] FCAFC 122 at paragraph [36], Finn J said:

[81] Witness B’s function for the Respondent is to carry out disciplinary investigations. The documents, subject to alleged LPP, came into existence as a consequence of Witness B conducting the disciplinary investigation into the EEO complaint.

[82] There is nothing remarkable in Witness B’s “thought” process that, “potential legal proceedings…could arise in the future” with respect to the Applicant or “by some other party”. 30

[83] Witness B states, in her written evidence, that “I wanted to get legal advice [from in-house counsel] in relation to those possible proceedings”. 31 This was referred to in examination in chief and Witness B responded, “because if the actions were substantiated following the investigation then potentially it would result in termination and obviously they could bring unfair dismissal”.32

[84] I find nothing untoward or uncommon with an “investigator” getting advice on potential litigation in the future. However, Witness A conflates and extrapolates her “thought” process into the “prevailing purpose” that the creation of the documents was “to obtain legal advice…in relation to conduct of the investigation generally and whether allegations could and should be put to [the Applicant] and the conclusion of the investigation”. 33

[85] I find that the documents came into existence for the dominant purpose of the inquiry into the EEO complaint made by Witness A.

[86] Witness B’s evidence is that she was seeking to understand case law, the potential risk in proceeding [with the investigation] and, “what did I need to consider in proceeding with the various interviews and then as I conducted the investigation”. 34

[87] In my view, Witness B, having discussed the above subjects with the in-house lawyer, proceeded with the investigation. It is a “long bow” to then assert that the documents, which were ultimately produced as part of the investigation, were for the purposes of obtaining legal advice. From the beginning, the documents were created for the purpose of enquiring into the EEO complaint.

[88] As part of any interview associated with a complaint, there are “housekeeping” matters. Included in those “housekeeping” matters is the requirement of the interviewee to be “open, honest and fulsome” in their responses. This housekeeping advice is appropriate and exemplary. The interview notes are most probably the closest to what has transpired. The advice to be “open, honest and fulsome” is not “legal advice” as such, it is common sense and part of an employee’s duty and consistent with the Respondent’s employment related policies.

[89] As I understand Mr Heathcote’s argument, he does not object to the witnesses being assisted by counsel in preparation of their witness statements. Mr Heathcote’s objection is that the Applicant is being denied the opportunity to compare the Record of Interview by the Investigator (Witness B) with the only version of events which he has – their witness statements.

[90] While there should be overlapping narrative between records of interview and witness statements, each may have a different focus. It is this possible change in focus and facts that Mr Heathcote wishes to examine with the respective witnesses.

[91] When attempting to ascertain the purpose for which documents sought were created, the totality of the evidence is that:

[92] What I do have is evidence that the documents were:

[93] Adopting the principles, omitting footnotes, set out by Her Honour Kenny J:

[94] Finally, in the totality of the evidence, I find the circumstances appear to accord with Her Honour’s statement at paragraph [30]:


[95] For the reasons set out above, I am satisfied that the Respondent was obliged to carry out an investigation into Witness A’s complaint. The documents created and subject to the request for production were, and had to be, created regardless of any intention to seek legal advice. However, there may have been some parts of those documents which were only created for the purpose of receiving legal advice. In my view, this conclusion accords with the view expressed in Pratt at paragraph [33(k)].

[96] Accordingly, in the first instance, pursuant to s.590(2)(c) of the FW Act, the documents 1, 3 and 4 in paragraph [3] are to be provided to the Commission by the Respondent. The documents are to be un-redacted. The documents will be considered to determine whether part or all of it attracts LPP.



S Heathcote of Counsel on behalf of the Applicant.

I Neil SC on behalf of the Respondent.

Hearing details:



25 July.

 1   Exhibit R1 (15, 21 and 23)

 2   Exhibit R1 (23)

 3   Transcript PN78

 4   Transcript PN85

 5   Section 577(a) and (b) of the FW Act

 6   Brink v TWU PR922612 at paragraph [7]

 7   King v Freshmore (Vic) Pty Ltd S4213 at paragraph [24]

 8   Exhibit R1 (11)

 9   Exhibit R1 (12)

 10   Exhibit R1 (13)

 11   Exhibit R1 (14)

 12   Pratt (30)(i)

 13   Exhibit R2 (6)

 14   Exhibit R2 (12)

 15   Transcript PN90

 16   Transcript PN60

 17   Transcript PN92

 18   Transcript PN93

 19   Transcript PN94

 20   Transcript PN136 and PN139

 21   Transcript PN98

 22   Transcript PN105

 23   Transcript PN108

 24   Transcript PN109

 25   Transcript PN113

 26   Transcript PN119

 27   Transcript PN123

 28   Transcript PN134

 29   Transcript PN146

 30   Exhibit R2 (15)

 31   Exhibit R2 (15)

 32   Transcript PN45

 33   Exhibit R2 (16)

 34   Transcript PN49

 35   Pratt 30(4)

 36   Pratt 30(5)

 37   Pratt 30(7)

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