Industrial Relations Commission of New South Wales CITATION: Lee and EnergyAustralia [2010] NSWIRComm 157 PARTIES: Paula Lee (Appellant) EnergyAustralia (Respondent) FILE NUMBER(S): IRC 293 of 2010 CORAM: Walton J Vice-President; Staff J; Tabbaa C APPEAL - leave to appeal - victimisation - application and operation of s 210(2) - complaint made by employee that workplace not safe or risk to health - subsequently employee redeployed - whether employer rebutted presumption that complaint was not a substantial and operative cause of the detrimental action of redeployment - respondent failed to fulfil the reverse onus - failure at first instance to consider why appellant was chosen for redeployment and not other employees - error of law - appeal upheld - matter remitted to be dealt with in accordance with law - Industrial Relations Act 1996 s 210, s 213 CATCHWORDS: APPEAL - leave to appeal - decision of Industrial Registrar - refusal of notice of motion filed by applicant at first instance seeking leave to serve notice to produce - applicant required to demonstrate documents had some tangible benefit or application to proceedings - exercise of discretion by Industrial Registrar - leave to appeal refused - Uniform Civil Procedure Rule 2005, r 7.3. LEGISLATION CITED: Conciliation and Arbitration Act 1904 Industrial Relations Act 1996 General Motors Holden Pty Ltd v Bowling (1996) 12 ALR 605 Harrison v P & T Tube Mills Pty Ltd (2009) 188 IR 270 CASES CITED: Hosemans v Commissioner of Police (No 4) (2005) 150 IR 263 Paula Lee and EnergyAustralia [2010] NSWIRComm 1016 Twentieth Superpace Nominees Pty Ltd v Transport Workers' Union (NSW) (2006) 156 IR 323 HEARING DATES: 23 August 2010, 6 September 2010, 13 September 2010 DATE OF JUDGMENT: 24 November 2010 Mr J Trew QC (Appellant) Toomey Pegg Lawyers LEGAL REPRESENTATIVES: Mr J Darams of counsel (Respondent) Freehills JUDGMENT: - 1 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES FULL BENCH CORAM: WALTON J, Vice-President STAFF J TABBAA C Wednesday 24 November 2010 Matter No IRC 293 of 2010 PAULA LEE AND ENERGY AUSTRALIA Application by Paula Lee for leave to appeal and appeal against a decision of Commissioner Bishop given in Paula Lee and EnergyAustralia [2010] NSWIRComm 1016 DECISION OF THE COMMISSION [2010] NSWIRComm 157 1 These proceedings involve two applications for leave to appeal and, subject to leave to appeal being granted, to appeal against a decision of Bishop C given on 31 March 2010 in Paula Lee and EnergyAustralia [2010] NSWIRComm 1016. In that matter, the Commissioner dismissed an application brought pursuant to s 213 of the Industrial Relations Act 1996 ("the Act") that Paula Lee ("the appellant") be reinstated in her previous position of Project Engineer within the iAMS Field Computing Section, Business Services Branch of EnergyAustralia ("the respondent"). 2 The second appeal is from a decision of Industrial Registrar Grimson given on 10 March 2010 rejecting a motion by the appellant for leave to serve a notice to produce on the respondent. 3 The applicant also filed a notice of motion seeking leave to adduce further evidence in the appeal. 4 At the conclusion of the appeal the parties agreed to a further conciliation conference. They gave the usual undertakings, noting that the appeal had been argued. The matter did not resolve. 5 The principal issue in the appeal involved the question of the application and operation of s 210(2) of the Act. The issue for determination was whether the Commissioner had misapplied the reverse onus provision of that subsection. The Commission determined that it would hear the parties on the question of leave to appeal at the outset of the appeal and also hear the notice of motion. Leave to appeal 6 The application for leave to appeal pleaded the following bases for the grant of leave to appeal: 1. Three persons including the Appellant were working together on projects in the Field Computing section of the Respondent. 2. The Respondent claimed that the work had virtually finished. 3. The Appellant had previously complained that the workplace was unsafe or a risk to health as a consequence of her treatment by the leader of the Field Computing team. 4. The Respondent redeployed the Appellant and not one of the other members of the section although all were equally capable of performing the remaining work. 5. No reason or evidence was led by the Respondent explaining why the Appellant should be redeployed and not one of the other two members in the section. 6. The Commissioner failed to consider those circumstances and merely decided that the Appellant was redeployed because there was no more work to which she could be allocated. 7. The Commissioner failed to consider why the Appellant was chosen for redeployment instead of one of the other members of the section. 8. In these circumstances the Respondent failed to rebut the presumption in Section 210(2) of the Industrial Relations Act. 9. In the events that have occurred, the Appellant has been redeployed to perform work of a clerical nature to the prejudice of her future and professional development and has suffered injustice. 10. In the circumstances it is contrary to the public interest to permit such injustice. 11. It is in the public interest that a full bench of the Commission provide guidelines to enable members of the Commission to properly apply and give effect to Section 210(2) of the Industrial Relations Act. 7 Mr J Darams of counsel, who appeared for the respondent, submitted that: ... this isn't a matter, in my respectful submission, which would raise an issue of significant principle or error of law that would attract leave in the ordinary course. Whilst your Honour the Vice-President characterised the issue as being one about the application of the section, that is the reverse onus, s 210(1), in my respectful submission I will take the Commission to the relevant evidence shortly, the decision below turns upon the evidence at trial and we will put forward the proposition that properly characterised the issue was one of finding of fact of the evidence before the tribunal. 8 Counsel relied, in that respect, upon Hosemans v Commissioner of Police (No 4) (2005) 150 IR 263. 9 Mr J Trew QC, who appeared for the appellant, submitted that the appeal raised important questions concerning the construction of s 210(2) of the Act and the proper application of the onus of proof upon a respondent in rebutting the presumption of victimisation. We agree with that submission. 10 Further, and importantly, as to the question of leave and the appeal itself, the alleged errors so identified demonstrate, contrary to Mr Darams' submission, that the decision made by Bishop C was not solely based on findings of fact. Nor was it merely discretionary in nature. The initial question arising is whether there was an error of law and perhaps an error of principle in respect of the legal test applied by the Commissioner and the application of s 210(2) of the Act. 11 Thus, having heard the parties, we granted leave to appeal. The decision at first instance 12 The Commissioner issued a very detailed and comprehensive decision, having examined the relevant background, chronology and evidence. 13 In summary, the factual background was that during the life of a project that involved fitting field computing technologies into vehicles of employees working in the field, Mr S Newbery, the Manager, Field Computing, Engineering Transmission and Technology Division of the respondent, said to the appellant, at a point in time when there was no work to be carried out (17 April 2008), "We can't have people sitting around doing nothing". It was this comment that led the appellant to claim that she was being bullied and subjected to intimidating behaviour by Mr Newbery, which she regarded as a risk to her health and wellbeing at work. She lodged a complaint of victimisation. 14 In August 2009, the appellant was redeployed. She contended this was as a result of making a complaint against Mr Newbery. The evidence of Mr Colin Locking, Manager, Business Services (Acting) Engineering and Technology Division, was that the reason why the appellant was redeployed was because the respondent had no work for the appellant to carry out because the project had been completed. 15 The Commissioner described the essence of the contest at first instance, and set out the relevant statutory provisions and authority as follows: [129] Ms Lee has alleged that she was victimised by EA pursuant to s.210(1)(j) which reads as follows: (j) makes a complaint about a workplace matter that the person considers is not safe or a risk to health, or exercises functions (as a member of a committee or otherwise) with respect to workplace consultation conferred under Division 2 of Part 2 of the Occupational Health and Safety Act 2000. [130] Ms Lee has rightly identified that the onus is on EA to rebut the presumption that she suffered the detriment she has alleged and was redeployed because of her complaint about "an unsafe workplace". [131] This arises as a consequence of the provisions of S.210 (2), Rebuttal Presumption as follows: In any proceedings under section 213 to enforce the provisions of this section, it is presumed that an employee or prospective employee who suffers any detriment as a result of action by the employer or industrial organisation was victimised because of a matter referred to in subsection (1) that is alleged by the applicant to be the cause of the detrimental action. That presumption is rebutted if the employer or industrial organisation satisfies the Commission that the alleged matter was not a substantial and operative cause of the detrimental action. [132] Thus it falls to the Commission to determine whether or not the redeployment of Ms Lee was not just subsequent in time to the complaint she made, but the "substantive and operative cause" of that redeployment. [133] The Full Bench in Twentieth Superpace Nominees v TWU [2006] NSWIRComm 218, observed at para.35: .....that from a policy viewpoint, every reasonable avenue should be available to an employee to raise occupational health and safety concerns without fear of victimisation or retribution and, accordingly, it is appropriate that section 210(1)(j) should be construed broadly. [134] In that case, one of issues for the consideration by the Full Bench (and indeed one of the grounds of appeal) was that the language of the section was specific and therefore it was necessary for an employee to prove that a complaint about the matters set out in s.210 (1)(j) had been made and indeed, that it required that a formal accusation be made at the time at which the alleged victimisation occurred. 16 The Commissioner's consideration of the evidence relevant to the question identified commenced at [150] - [156]: [150] That leads me to consideration of the crucial and fundamental issue of whether that redeployment was specifically made because Ms Lee had made her complaint about an "unsafe workplace". [151] There is no doubt, as indicated above, that Ms Lee made a formal complaint about the remark made by Mr Newbery on 17 April 2008. She considered this remark bullying and victimisation and that Mr Newbery was trying to "get rid of her" and that this created a psychologically "unsafe workplace". [152] She then immediately went off on sick leave and did not return to that area or work with Mr Newbery or Mr Kelly again. [153] Quite rightly, because of the nature of the complaint and the need to conduct an independent investigation, EA took appropriate action and moved or transferred her to an alternate "safe workplace". This was not a redeployment at this stage. Ms Lee did not object to this move. [154] An investigation of the complaint then took place by Holding Redlich. [155] I accept that that was an independent investigation. It may have been paid for by EA, however in my experience it is usually the employer who does pay. After all it is the employer's obligation to conduct an appropriate arm's length enquiry into those type of allegations. There are a range of outside private sector organisations/companies/firms that carry out such work. However they do not do it for free. Simply because an investigation is commissioned and paid for by an employer does not mean it is not independent. What is crucial are the terms of reference. Provided that such terms are clear, address the issues in question and that all relevant persons are interviewed (which I consider occurred in this matter), then I would have no issue with such an investigation. The provision of an actual copy of any final report is a practice that I have found varies. Obviously the findings should always be conveyed in sufficient detail to those concerned and as far as is practicable any recommendations made followed. [156] The Holding Redlich Report found that there was no bullying or victimisation in the incident as alleged and that her reaction was "unreasonable". The same investigation also upheld EA's application of the Merit Appointment Policy to the appointments of Mr Newbery and Mr Kelly. The Report further recommended workplace counselling to restore or re-establish the working relationship between the three employees. The challenged decision 17 The particular findings of the Commissioner to which the appeal relates are found at [177] - [185] of the decision in the following terms: [177] By the time Ms Buchanan had formed her views about the impracticability of mediation because of the attitude of both parties , time had also moved on in relation to the projects that had formed the overwhelming basis of Ms Lee's former role. [178] It should also not be forgotten that back in January 2009 in the letter to the PSA Mr Farrell had concluded by saying: It should be noted that like all projects this one has a finite life and therefore at a point in the future the project will be finished and the team broken up and re-deployed, however, in the meantime we repeat our offer of mediation in an effort to establish or re-establish professional working relationships on the project. [179] I accept unequivocally the evidence of Mr Newbery and particularly that of Mr Locking (who is the Executive Manager Business Services (acting) concerning the completion of the EMSos and DOPs projects and that there is effectively no longer any field computing work that Ms Lee can be returned to. EA management has also exercised its prerogative as to what projects are de-scoped (e.g printers in the vehicles). It is clear from the evidence that the broader iAMS project across EA is under the responsibility and control of EA's Corporate IT and in any event is principally being contracted out. It is for Corporate IT to manage and make decisions about that project. [180] It is also clear from the evidence that whilst some ongoing work remains in the section, it is of limited scope and, as Mr Locking described it, of a "tidying up" nature and "tying up loose ends". Mr Newbery indicated that he was hunting around for work for that business section. There is certainly not full-time work for three people. The time sheeting work that is currently being carried out, at Mr Locking's request, is obviously of limited duration and may or may not lead to something more substantial in the future. [181] Ms Lee complains that she has been the only one of the three redeployed. However, all things considered, Mr Newbery and Mr Kelly clearly have a limited future in that section and will also quite probably, unless sufficient alternate business options arise, face redeployment. They were redeployed from their former positions into the positions they currently occupy in 2005, so redeployment is no stranger to Mr Newbery and Mr Kelly. [182] Even if the projects had carried on and were ongoing today, I doubt that Ms Lee could have returned to her former role given the clear difficulties in the relationship between Ms Lee and Mr Newbery. Unless and until Ms Lee accepts that the incident on 17 April 2008 was not bullying and victimisation, accepts EA's appointment of Mr Newbery and Mr Kelly, then she will not be able to move on from the issues she had with Mr Newbery and EA. [183] Ms Graham has indicated that there are other Engineer positions within EA and Ms Lee is entitled to apply for appointment to such position in accordance with the Merit Appointment Policy. Ms Lee should actively engage in looking at alternative positions within EA. [184] Having very carefully considered the evidence and submissions of the parties I find that the complaint Ms Lee made about an unsafe workplace was not the "substantial and operative cause" of her redeployment on the 12 August 2009. She was redeployed because the particular projects on which she had been engaged had concluded and there was no more field computing work to which she could be allocated (and insufficient other work within the section to support the three employees). Therefore I am satisfied that EnergyAustralia has rebutted the presumption that Ms Lee was victimised because of her complaint made under s.210 (1)(j). [185] The application for orders is therefore dismissed. Submissions 18 The principal propositions put by Mr Darams in resisting the appeal may be summarised as follows: (i) the Commissioner not only understood the applicable test under s 210(2) of the Act, but that the Commissioner applied it to the facts of the case; (ii) the evidence adduced by the respondent at first instance established the reasons why the appellant was redeployed in August 2009. There was effectively no more field computing work which she could be allocated. Importantly, those findings are not sought to be challenged by the appellant in the appeal. Further, there was no challenge to the findings of the Commissioner at [184] of the decision that the complaint Ms Lee made about an unsafe work practice was not, as the Commissioner found, "the "substantial and operative cause" of her redeployment on 12 August 2009. She was redeployed because the particular projects on which she had been engaged had concluded and there was no more field computing work to which she could be allocated... Therefore I am satisfied that EnergyAustralia has rebutted the presumption that Ms Lee was victimised because of her complaint made under s 210(1)(j)"; (iii) the appellant has misconstrued what the respondent was required to do or permitted to do to rebut the presumption under s 210(2) of the Act. The respondent was not required to adduce or lead evidence why Mr Newbery and Mr Kelly were not chosen for redeployment. Nor was the Commissioner required to consider why they were not redeployed at the same time; (iv) the respondent was only required to demonstrate that the fact that the appellant had made her complaint in July 2008 was not a "substantial and operative cause" of her redeployment in August 2009. That is the test that is required pursuant to s 210(2); (v) furthermore, it did discharge that onus by adducing evidence from the person, Mr Locking, who made the relevant decision to redeploy the appellant in August 2009 as to why the appellant was redeployed, the respondent rebutted the presumption ( Twentieth Superpace Nominees Pty Ltd v Transport Workers' Union (2006) 156 IR 323 (at [54]); (vi) to the extent that the decision of General Motors Holden Pty Ltd v Bowling (1996) 12 ALR 605 is applicable to 210(2) of the Act, the fact that Mr Locking was called by the respondent, and gave that evidence, distinguishes this case from General Motors Holden v Bowling. 19 For his part, Mr Trew addressed in a careful manner the facts as they emerged from the evidence by reference to the relevant legal principles, the onus on the respondent in respect to s 210(2), and the findings of Bishop C that the respondent had rebutted the presumption that the appellant was victimised because of her complaint made under s 210(1)(j). 20 In summary, Mr Trew put the following contentions in support of the appeal: (i) Section 210(2) of the Act treated the appellant as having been victimised and that the respondent failed to discharge the onus imposed by that provision. The Commissioner failed to deal with that issue; (ii) the appellant is a professional engineer who first commenced employment with the respondent in January 1996. The appellant's duties since her redeployment have been clerical in nature. In her present position her employment is less secure, she is not in any identifiable position and her continuity of knowledge and experience is affected; (iii) as a consequence of the detriment suffered by the appellant and the action of the respondent, the appellant has been victimised: Section 210(2). See Twentieth Superpace Nominees Pty Ltd . The Commissioner wrongly applied the reverse onus imposed by s 210(2): General Motors Holden Pty Ltd v Bowling; (iv) as a consequence of the appellant's victimisation, it was for the respondent to positively prove, on the balance of probabilities, that the appellant's complaint was not a substantial and operative cause of the detriment she suffered. Consideration 21 The principal issue in the appeal is whether the Commissioner erred in finding that the respondent discharged the onus of proof as required by s 210(2) of the Act. In the present matter, this provision operated in a context where it was contended that the employee was victimised because she made a complaint about a workplace matter that she considered was not safe or a risk to health. The Commissioner found (at [35]) that there was no doubt, and it was not contested, that the appellant made a specific complaint of an "unsafe workplace" in relation to the particular comment made to her by Mr Newbery on 17 April 2008. It was acknowledged by the parties that the complaint, so made, fell within the matters contemplated by s 210(1)(j) and potentially thereby enlivened s 213 of the Act. 22 The relevant factual circumstances here are reasonably straightforward. The appellant and two other employees worked in what was known as the Field Computing Group. One of the employees was Mr Newbery, who was the appellant's supervisor and the other was Mr Paul Kelly. After the making of a complaint, the appellant was redeployed because there was insufficient work for three people. The respondent contended the basis for transferring the appellant was the shortage of work and, therefore, the provisions of s 210(1) were not offended. 23 However, the Commissioner did not consider which employee was the appropriate employee that should have been redeployed, if at all, and why the other two employees, being Mr Newbery and Mr Kelly, should not have been chosen for redeployment (or for that matter why the employer did not address that question). 24 The reverse onus provision, in our opinion, required that the respondent demonstrate that the safety issue which led to the complaint was not an actuating reason for the appellant's redeployment. The employee had the benefit of the assumption that she had been redeployed because she made the complaint and therefore the onus is on the employer to establish that that was not the reason. To merely establish on the evidence that it was necessary to redeploy one employee leaves open the possibility that this employee was chosen for the reason of her complaint, particularly when that complaint was made at a time coincident with the transfer. Further, the evidence was that many months later at the hearing, two persons were still working in the section. 25 The High Court of Australia in General Motors Holden v Bowling explained the meaning of the reverse onus provisions then found in s 5 of the Conciliation and Arbitration Act 1904 (now repealed). That case involved an employee who was a union official and also a troublemaker, who had been dismissed from his employment. The Court accepted that a substantial reason for his dismissal was that he was a troublemaker, but in that particular case, the particular officer of the employer who was responsible for making the decision to dismiss the appellant was not called to give evidence. In those circumstances, it left open, when analysed, the option or possibility that the employee was dismissed because he was also a union official. 26 Section 5(1) of the Conciliation and Arbitration Act made it a contravention for an employer to dismiss an employee, or injure him in his employment because the employee was an officer, delegate or member of an industrial union of employees. Section 5(4) provided, inter alia, that in any proceedings for an offence against the section, if all the facts and circumstances were proved, it shall lie upon the defendant to prove that he was not actuated by the reason alleged in the charge. Mason J, with whom Gibbs, Stephen and Jacobs JJ agreed, Barwick CJ dissenting, stated at 617: To succeed the appellant has to show on the evidence that he was not actuated by the consideration set out in s 5(1)(a). In the circumstances of this case he will not achieve this objective unless the evidence establishes the real reason for the dismissal, notwithstanding that the appellant failed to put it forward at first instance, and that it lies outside the ambit of s 5(1)(a). Section 5(4) imposed the onus on the appellant of establishing affirmatively that it was not actuated by the reason alleged in the charge. The consequence was that the respondent, in order to succeed, was not bound to adduce evidence that the appellant was actuated by that reason, a matter peculiarly within the knowledge of the appellant. The respondent was entitled to succeed if the evidence was consistent with the hypothesis that the appellant was so actuated and that hypothesis was not displaced by the appellant. To hold that, despite the subsection, there is some requirement that the prosecutor brings evidence of this fact is to make an implication which, in my view, is unwarranted and which is at variance with the plain purpose of the provision in throwing on to the defendant the onus of proving that which lies peculiarly within his knowledge. I would, for my part, accept the finding that the principal reason for the dismissal was that the appellant considered the respondent to be a troublemaker, to have deliberately disrupted production and thereby to be setting a bad example to others. Even so, this finding does not carry the appellant the whole distance. It is to my mind a very considerable leap forward to say that this finding in itself is a comprehensive expression of the reasons for dismissal and that they were dissociated from the circumstance that the respondent was a shop steward. No doubt this is an advance which could be made if officers of the appellant had said in evidence: "We dismissed him because he was a troublemaker, because he was deliberately disrupting production and setting a bad example and we did so without regard at all to his position as a shop steward". and that evidence had been accepted. Yet this evidence was not given and, even if it had been given, there may have been a question as to its reliability. Once it is said that the appellant dismissed him because he was deliberately disrupting production and was setting a bad example it is not easy to say without more that this had nothing to do with his being a shop steward. Although the activities in question did not fall within his responsibilities as a shop steward his office gave him a status in the work force and a capacity to lead or influence other employees, a circumstance of which the appellant could not have been unaware. It would be mere surmise or speculation, unsupported by evidence, to suppose that the appellant's management, if concerned as to the bad example he was setting, divorced that consideration from the circumstance that he was a shop steward. And at 619: The unexplained failure of the appellant to call the two Melbourne directors then becomes significant. It left uncontroverted the possibility that the respondent's position as a shop steward was an influential, perhaps even a decisive, consideration in their minds. 27 It follows, in our opinion, that if the appellant was redeployed for the reasons found in s 210(1)(j), the onus found in s 210(2) is enlivened and could not be discharged in the absence of evidence reasonably excluding the possibility that the appellant was redeployed because she made a complaint. 28 Mr Darams relied upon the following observation of Gibbs J at 612 in General Motors Holden v Bowling: If in the present case evidence had been given by the directors responsible that the employee was dismissed because he was guilty of misconduct or because his work was unsatisfactory, and that in dismissing him they were not influenced by the fact that he was a shop steward or indeed that he was dismissed in spite of that fact, and that evidence had been accepted, the onus would have been discharged. 29 Mr Darams submitted that in light of Mr Locking giving evidence on behalf of the respondent, the current case was distinguishable from General Motors Holden v Bowling. Counsel also relied upon Harrison v P & T Tube Mills Pty Ltd (2009) 188 IR 270. However, in that case, the Court (Ryan, Marshall and Logan JJ) could detect no error by the primary judge in expressing himself as satisfied, on the evidence before him, that P & T Tube Mills Pty Ltd had discharged its onus of proving, on the balance of probabilities, that it had not been influenced by an employee's union membership or his status as a delegate when it dismissed him. The decision maker gave evidence to that effect and the primary judge accepted that evidence. 30 In this matter, Mr Darams contended that Mr Locking made the relevant decision to redeploy the appellant in August 2009 and it was the reason why the appellant was redeployed which counsel contended, rebutted the presumption. Mr Locking gave the following evidence at first instance: Q. Okay. So your understanding then was you then made a request of Ms Buscombe to verify if there was still a position in field computing for Ms Lee? A. Yes, I did. Q. And that was as a consequence of the practical completion of the project? A. That was a consequence of a number of things. One, the projects were effectively completed, plus the ongoing issues around why we're here today, so Ms Lee was basically not participating in the team anyway, given her absence. The projects were essentially complete. So people need to move on and do other things. So I asked Helen to look at what else was around in Energy Australia in terms of field computing because various parts of the business are involved in field computing. And the response back was that she had made those inquiries and couldn't identify anything, so we had to move on. Q. Not only were there no positions in field computing available in Mr Newbury's group, you were informed there were no positions available in field computing anywhere else in the organisation? A. Anywhere else, at that point in time. The normal process is if there are any positions, they get advertised and people can apply for them. COMMISSIONER: Q. And can I ask, what's the position with Mr Newbury and Mr Kelly? A. At the moment? Again they've been tidying up loose ends, but at the moment, to be quite frank, we're looking for other work for them to do and it's not field computing work. I have no more field computing work in my area. FARRELL: Q. Thank you. You then say that on 12 August you participated in a meeting with Paula Lee, Helen Buscombe and Ross Callas, you participated via telephone. You advised Ms Lee that her previous role in field computing no longer existed and as a consequence, she as (sic) in redeployment? A. Yes. 31 This evidence, in our opinion, rises no higher than that there was work for two people only in the relevant section and not work for three. 32 The appellant had submitted to Bishop C that the respondent had failed to provide an explanation for why the appellant had been specifically excluded from work she was previously doing. The Commissioner acknowledged this submission at [91] of her decision. 33 The Commissioner dealt with this issue at [180] - [181] of her decision as follows: [180] It is also clear from the evidence that whilst some ongoing work remains in the section, it is of limited scope and, as Mr Locking described it, of a "tidying up" nature and "tying up loose ends". Mr Newbery indicated that he was hunting around for work for that business section. There is certainly not full-time work for three people. The time sheeting work that is currently being carried out, at Mr Locking's request, is obviously of limited duration and may or may not lead to something more substantial in the future. [181] Ms Lee complains that she has been the only one of the three redeployed. However, all things considered, Mr Newbery and Mr Kelly clearly have a limited future in that section and will also quite probably, unless sufficient alternate business options arise, face redeployment. They were redeployed from their former positions into the positions they currently occupy in 2005, so redeployment is no stranger to Mr Newbery and Mr Kelly. 34 In our opinion, it is clear that the Commissioner focused on the question of whether, because of a decrease in the work, one of the employees had to leave the relevant section. However, as we have stated, what the Commissioner did not address was why it was the appellant. At its highest, the evidence of the respondent was that there was insufficient work for three persons. Although the appellant complained that she was singled out for redeployment, the Commissioner failed to consider in her conclusions, why the appellant was chosen for redeployment and not one of the other employees. We agree with the submission of Mr Trew that the Commissioner applied the wrong test, or misunderstood the test that should have been applied in its application to the evidence. That was an error of law and must result in the appeal being upheld. 35 Mr Trew initially submitted that should the Commission reach such a conclusion, the Full Bench should determine the application for itself. However, Mr Trew conceded that it would be necessary to call evidence in respect of the exercise of this Commission's discretion on the question of reinstatement. It was for this reason that the appellant filed a notice of motion to call fresh evidence. That evidence, so senior counsel submitted, would go to whether there was work available at the time of the complaint made by the appellant, whether there was work available at the time of the hearing of the matter before Bishop C and whether there was work available at a later time after the conclusion of the hearing. 36 The respondent's position was that if the Full Bench found error it should remit the matter to Bishop C to deal with these matters in accordance with law. The basis for this submission was that the Commissioner has the relevant background information to the application and the matter should be remitted back to the her. We propose to adopt that course. Appeal from decision of Industrial Registrar 37 In light of the decision we have reached, it is unnecessary to resolve this particular question. We make, however, some brief remarks about this question below. 38 On 10 March 2010, the Industrial Registrar refused a notice of motion filed by the appellant seeking leave to serve a notice to produce on the respondent. The appellant seeks leave to appeal and to appeal the Industrial Registrar's decision. The grounds of appeal are: 1. The decision of the Industrial Registrar dated 10 March 2010 effectively denied the appellant access to documents relevant to her case. 2. The appellant suffered injustice. 39 The appellant was unrepresented in the proceedings before the Industrial Registrar and, therefore, in order to issue a summons to produce required the Industrial Registrar's leave pursuant to r 7.3 of the Uniform Civil Procedure 2005, The appellant was required to demonstrate that the documents sought had some tangible benefit or application to the proceedings, rather than simply that the information "may have enabled her to explore in evidence any connection between certain matters." It was within the Industrial Registrar's discretion in this matter to refuse leave on the basis that these conditions were not met. Furthermore, none of the documents could be said to have been relevant to the issues that required determination in the proceedings. The appellant principally sought documents in relation to events that occurred in 2005, the relevant period being the events that occurred in 2009 when the decision to redeploy her was made. Matters which occurred in 2005 could have no impact on those events whatsoever. We can discern no errors of law or principle in the decision of the Industrial Registrar. 40 Accordingly, leave to appeal is refused to bring the appeal from the decision of the Industrial Registrar. ORDERS 1. As to the appeal from the decision of Bishop C given on 31 March 2010: (i) Leave to appeal is granted. (ii) The appeal is upheld. (iii) The proceedings in Matter No IRC 1371 of 2009 are remitted to Commissioner Bishop to be dealt with in accordance with this decision. 2. As to the appeal from the decision of the Industrial Registrar given on 10 March 2010: (i) Leave to appeal is refused. ------------------------------------ DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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