Industrial Relations Commission New South Wales Medium Neutral Citation: New South Wales Local Government, Clerical, Administrative, Energy, Airlines & Utilities Union (on behalf of Annie Cotterill) v Liverpool City Council [2011] NSWIRComm 1000 Hearing dates: 23 December 2010 Decision date: 10 January 2011 Jurisdiction: Industrial Relations Commission Before: Tabbaa C Decision: Paragraph (1) of the Summons for Production dated 2 December 2010 be amended to read as follows: Documents (however described) which relate to complaints made or grievances lodged against Mr Les Simons during the period 26 May 2007 to date including any documents relating to the investigation, disciplinary or otherwise into the conduct of Mr Les Simons and any action taken in relation to such complaints (including, but not limited to, complaints made by Amjad Maaya and Neil Bailey); Otherwise, the Amended Notice of Motion is refused. The Union shall observe the appropriate protocols pertaining to confidential and sensitive information. The Council is to comply with the Summons for Production, as amended, by close of business on Tuesday, 11 January 2010. Catchwords: NOTICE OF MOTION - Summons for Production - relevance - necessity for the fair disposition of the case - "on the cards" that will assist Applicant's case - legitimate forensic purpose for documents requested - sensitive & confidential information - Inaction of the Employer in relation to grievances Legislation Cited: Evidence Act 1995 (s.55) Uniform Civil Procedure Rules 2005 Industrial Relations Act 1996 Local Government (State) Award 2010 Cases Cited: Trade Practices Commission v Arnotts Limited & Ors. (1989) 88 ALR 90 Attorney-General v Stuart 34 NSWLR 681 Police Service of NSW v Batton [2000] NSWIRComm79 Category: Procedural and other rulings Parties: The Local Government Association of New South Wales (Applicant in Notice of Motion) New South Wales Local Government, Clerical, Administrative, Energy, Airlines & Utilities Union (Respondent in Notice of Motion) Representation: Mr Ross Nassif, Industrial Officer (Applicant in Notice of Motion) Mr Michael Barnes, Solicitor (Respondent in Notice of Motion) File Number(s): IRC 1371 of 2010 INTERLOCUTORY DECISION ON NOTICE OF MOTION 1The New South Wales Local Government, Clerical, Administrative, Energy, Airlines & Utilities Union ("the Union"), on 24 November 2010, filed an application, pursuant to section 84 of the Industrial Relations Act 1996, seeking relief for the alleged unfair dismissal on 9 November 2010 of its member, Annie Cotterill, by Liverpool City Council ("the Council"). 2Ms Cotterill was employed by the Council from May 1990 until the cessation of the employment relationship pursuant to the terms and conditions of the Local Government (State) Award 2010. She took up her current role as a full-time Administration Officer (City Works) in early January 2006. 3The Council contended that the Applicant had tendered her resignation voluntarily. The Applicant contended that she had been constructively dismissed given that she had no option but to resign given the work circumstances that existed at that time created by Mr Les Simons who commenced in a supervisory role within the previous two years. 4Ms Cotterill and Mr Simons worked alone in an office building in the Depot. Other members of staff worked in other buildings at the same depot. 5The matter was listed before Connor C on 16 December 2010 at which time conciliation proceedings failed to resolve the claim and a filing schedule was issued to the parties. 6The Union filed a Summons for Production on 2 December 2010. It was served on the Council on 6 December 2010. 7The Council, which is resisting compliance with the Summons, filed a Notice of Motion on 10 December 2010 seeking to set aside the summons in whole. Following conciliation proceedings held on 16 December 2010, the Council filed an Amended Notice of Motion on 22 December 2010 seeking to set aside the summons in part, namely to set aside item 1 of the summons. 8The Notice of Motion was listed for hearing before the Commission as currently constituted on 23 December 2010. Notice of Motion 9The Council seeks to set aside the part of the summons which relates to the following: 1. Documents (however described) which relate to complaints made or grievances lodged against Mr Les Simons during the period 1 January 2007 to date including any documents relating to the investigation, disciplinary or otherwise into the conduct of Mr Les Simons and any action taken in relation to such complaints (including, but not limited to, complaints made by Amjad Maaya and Neil Bailey); 2. .......... 3. .......... Without limiting the generality of the meaning of the word "documents" where that word appears in this Notice it includes letters, correspondence, electronic mails, facsimile transmissions, file notes, memoranda, accounting records, statements, order forms, invoices, receipts, drawings, plans and specifications, minutes of meetings and notes of meetings, deeds, dealings, authorities, consents and anything from which sounds, images or writings can be reproduced with or without the aid of anything else. 10The Commission was advised that Item 2 of the summons required the Council to produce more documents and that would be done by the close of business on 23 December 2010. The documents required to be produced in Item 3 of the summons had already been produced. Submissions 11The Council relied on the affidavit of Mr Nassif, so far as it is relevant to the amended notice of motion, and argued that: 11.1 The summons to produce documents relating to complaints or grievances against Mr Les Simons during the period 1 January 2007 to date is not relevant to the unfair dismissal proceedings involving Ms Annie Cotterill. It argued that the Union has not demonstrated how such documents can be relevant in view of the fact that Ms Cotterill's employment was terminated by her resignation on 9 November 2010. In that regard, the Council relied on Trade Practices Commission v Arnotts Limited & Ors. (1989) 88 ALR 90 in which Beaumont J held (at p 103) that: The test of adjectival relevance is satisfied if the material has apparent relevance. In my opinion, the documentation called for here could possibly throw light on the issues in the main case.... 11.2 The documents summonsed are not necessary for the fair disposition of the proceedings. The Council submitted that the primary test of whether a summons or an element of a summons is permissible is whether the documents summonsed are necessary for the disposition of the proceedings. In other words, whether the evidence sought is not only relevant, but necessary, for the fair disposition of the proceedings: Arhill v General Terminal Company (1990) 23 NSWLR 545 at 556. 11.3 The union has to date failed to demonstrate that it is at least "on the cards" that the documents summonsed will assist the Applicant's case. 11.4 The Union has failed to demonstrate a legitimate forensic purpose for the documents requested. The Council relied on the observations by Hunt CJ in Attorney-General v Stuart 34 NSWLR at p 681: The concept of legitimate forensic purpose is not confined to claims of public interest immunity. It arises whenever a party seeks access to documents for which he has issued a subpoena; where objection is taken, a party who is unable to show that it is at least "on the cards" that such documents will assist his case is not entitled to have access to such documents simply to see whether they may do so. 11.5 The material identified in the summons for production has no relevance to any of the matters identified in respect of the unfair dismissal proceedings. The Council argued that as the Applicant has failed to discharge the obligation in (4) above, it suggests that the evidence sought has no conceivable relationship to the fair disposition of the unfair dismissal proceedings and does not provide any specific insight into the relationship between the Applicant and the other employees and, to that extent, is irrelevant. 11.6 The point of contention in the substantive proceedings is whether the Applicant terminated the employment by resignation or whether the termination occurred at the initiative of the Council. The Council contends that the Applicant resigned her employment voluntarily and therefore cannot attract the jurisdiction of the Commission. On that basis, the Applicant needs to demonstrate to the Commission how the specific circumstances of other grievances are relevant to the facts and circumstances of her resignation. In the Council's view, none of the documents sought in relation to grievances against Mr Simons are analogous to the circumstances of the Applicant nor do they provide any specific insight into the nature of the relationship between the Applicant and Mr Simons. 11.7 The documents being sought contain sensitive and confidential information that has nothing to do with these proceedings. No approval has been obtained from the individuals concerned to produce their documents. The Union is well aware of the particular circumstances pertaining to Mr Maaya and possibly Mr Bailey as their grievances were handled by the Union. The Union may well be in possession of the very documents requested, or at least in a position to ask their members for the documents. 11.8 The Council reserves its rights to object to the admissibility of the material on the basis of the Tendency Rule and the Credibility Rule pursuant to ss 97 and 102 of the Evidence Act 1995 (NSW) should the Applicant intend to use the evidence in the substantive proceedings to establish a tendency or pattern of behaviour by Mr Simons. 12The Union relied on the affidavit of Mr Steven Donley, a permanent fulltime employee of the Union in which he stated that: 12.1 Part of Mr Donley's duties included dealing with industrial and employment related issues associated with the Council. In that context, he has been aware, for over one year, of controversy in the workplace associated with aspects of Mr Les Simons' treatment of a range of employees. Mr Simons holds a supervisory role at the Liverpool depot. 12.2 Mr Donley is aware of an investigation conducted by an external investigator into complaints by Mr Amjad Maaya as to the manner in which he was spoken to by Mr Simons regarding a motor vehicle during which the latter allegedly made comments about Mr Maaya's disabled son. Mr Donley was discussing that matter with the General Manager on Ms Cotterill's last day at work. 12.3 Mr Donley is also aware that the Council is currently conducting an investigation into a " without prejudice " letter to the Council dated 29 November 2010 and signed by 12 members of the Management Team of City and Facility Maintenance who report to Mr Simons at the said Depot. The joint letter alleged that " The team is being adversely affected both mentally and physically by the alleged constant and continued harassment and bullying by Les Simons " - behaviour designed to offend, humiliate and intimidate the employees. The letter noted that this behaviour " has been formally reported to council " and " individually and as a group the team has requested intervention by management " and were assured that their concerns would be investigated. It was contended that, despite the assurances, only one investigation had taken place. 12.4 Whilst Mr Donley agreed that industrial action taken by staff was in support of Ms Cotterill, he pointed out that it was also in taken in protest at the general conduct of Mr Simons towards a number of employees over a number of months and over his treatment of staff generally. 13The Union further argued that: 13.1 The high water mark one would look to if applying the rules of evidence is section 55 of the Evidence Act 1995 which provides that: (1) The evidence that is relevant in a proceeding is evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding... [emphasis added] The summons is relevant. The Union noted that there is no law that determines the factual matrix of what constitutes an unfair dismissal nor are there any parameters or definitive law that determines a constructive dismissal. Therefore, as it is a question of fact that needs to be determined and not a question of law, the circumstances surrounding the dismissal need to be considered. 13.2 Ms Cotterill has developed her own case in the section 84 claim as she is entitled to do in order to provide a factual background as to what happened on that day. It was pointed out that in its reply to the s. 84 application, the Council's case commenced on 9 November 2010. Ms Cotterill submitted that her case commenced before that date. The Union pointed out that constructive dismissal does not necessarily have to involve an act by the employer but may be by way of inaction or conduct. In that regard, the Union cited Police Service of New South Wales v Batton [2000] NSWIRComm 79 [parag. 22]: Although the term "constructive dismissal" is quite commonly used it can deflect attention from the real inquiry. That inquiry should involve an analysis of what occurred. Did the employer behave in such a way so as to render the employer's conduct the real and effective initiator of the termination of the contract of employment and was this so despite on the face of it the employee appears to have given his or her resignation? It is obvious that a consideration of these matters must be made on a case-by-case basis and that an attempt to formulate general principles in the absence of particular facts will not assist in the overall determination of this issue. It was also pointed out that the Council does not respond to the factual background provided by the Applicant although it was well aware of the complaints that were being made about Mr Simons and about the close proximity of the Applicant's work station to Mr Simons. No risk assessment was made to determine how Mr Simon's behaviour was affecting their workers nor was information provided to the workers as to how the complaints about Mr Simons were being handled. 13.3 The Applicant submitted that the Union has not problem in seeking the documentation from its members as to previous complaints. However, the Council is in possession of the original documents. The Union has no difficulty in dealing with the conventions associated with confidential information and was prepared to provide undertakings to the Commission as to the maintenance of confidentiality in relation to documents produced in response to the summons to produce. 13.4 The Union was prepared to amend its subpoena to confine the documents sought to the period from 26 May 2008 which the Council identified in the proceedings as being the date on which Mr Simons commenced with the Council in the Supervisory role. Legislative Powers 14The Commission's power to summons and compel the production of documents is set out in section 165 (3)(C) of the Industrial Relations Act 1996 (NSW). 15Rule 33.1 of the Uniform Civil Procedure Rules 2005 ("the UCPR") defines a subpoena to mean: ".... an order in writing requiring the addressee: (a) to attend to give evidence, or (b) to produce the subpoena or a copy of it and a document or thing, or (c) to do both of those things, and includes a summons to that effect under section 165 of the Industrial Relations Act 1996." 16The Commission may, under rule 33.4 (1) of the UCPR, on application of a party or person with sufficient interest, set aside the summons wholly or in part. 17According to rule 33.4 (2) an application to set aside a subpoena must be made on notice to the issuing party. Consideration 18Ms Cotterill commenced employment with the Council in about May 1990. Mr Simons commenced in the relevant supervisory role on 26 May 2008 and the Applicant resigned her employment on 9 November 2010. There is no evidence in these interlocutory proceedings that there were any grievances involving Ms Cotterill prior to the grievance that led to the cessation of the employment relationship. 19Ms Cotterill stated on 4 and 5 November 2010 there were telephone conversations between Mr Simons and herself during which the former allegedly made derogatory remarks about her work performance and allegedly asserted that her inadequacies were reflecting poorly upon him. He is alleged to have done so in an intimidating manner. Ms Cotterill had previously allegedly observed Mr Simons treating staff in a demeaning and dismissive manner, had observed staff leaving Mr Simons' office in distress having overheard his raised voice through the closed door of his office. She was aware that those staff members had lodged grievances and there were no reported outcomes advised by senior management nor was there any apparent change in terms of Mr Simons' behaviour. 20Ms Cotterill also stated that late on 8 November 2010, Mr Simons demanded that a Senior Coordinator provide a report in respect of the purchase of a mattress shredder on very short notice. Such a task, she stated, required her involvement. She felt that the time period for complying with the direction was unreasonable given that the companies from which they were required to obtain quotes were not readily accessible that afternoon or early the next morning and further given that the project required co-ordination with two other Councils. Ms Cotterill alleged that she was aware that Mr Simon's management style was demanding and that he created unrealistic timelines for the completion of both her work and the work of all coordinators reporting to him. 21Ms Cotterill further stated that she attended work early on 9 November 2010 to work on the report aware that she had no prospect of completing it by the deadline. Later that morning, during a conversation with Mr Simons, she alleged that he raised issues regarding the trustworthiness and competence of staff. She said she attempted to diffuse the situation but he was dismissive of her observations and his demeanour towards her changed dramatically. His face allegedly displayed anger and irritation causing Ms Cotterill to become distressed. She was allegedly agitated and was crying. 22Ms Cotterill stated that she was overwhelmed and was greatly distressed by her workload and her non-completion rate on existing work assigned to her and, for all the above reasons, felt she had no option but to resign as she could not cope with her work circumstances. 23The Council argued that the Union has failed to discharge the onus of proving the apparent relevance of the documents. I do not accept that submission. 24The Union has raised two issues for litigation in relation to Ms Cotterill's decision to cease the employment relationship - namely, the alleged unrealistic timelines for completion of work set by Mr Simons and his alleged derogatory, demeaning and dismissive manner. Both those grievances are stated to have applied equally to Ms Cotterill and the coordinators. There is no evidence of Ms Cotterill raising those matters with senior management previously although Ms Cotterill and the union were aware that those issues had been raised by coordinators and no feedback had been received. The Union further contended that there was no change in his attitude or demeanour that would indicate that senior management had attended to the problem. The joint "without prejudice" letter from the coordinators to senior management, dated 29 November 2010, appears to confirm the Union's contentions that at least some of the grievances raised by the coordinators are analogous to the circumstances of Ms Cotterill. 25In my view, the Union has demonstrated adjectival relevance in that the documentation required, if in existence, may assist by throwing light on the issues identified above: Trade Practices Commission v Arnotts Limited and Ors Fed C of A 88 ALR 90 @ 103. 26The parties acknowledged, during the interlocutory proceedings, that a requirement to produce the documents on subpoena does not mean that the documents produced will be automatically allowed to be tendered in the substantive proceedings if an objection is raised. The Union would have to prove relevance to the substantive proceedings and would need to demonstrate how the tender of that document would assist the Commission in fairly determining the substantive issue - whether Ms Cotterill resigned her employment voluntarily or was constructively dismissed. 27In view of the particular circumstances, there is no necessity to seek documentation preceding Mr Simons' appointment to the role of Supervisor on 26 May 2008. 28As some of the documentation may involve information pertaining to non-union members and persons who have nothing to do with the substantive proceedings, the Union is required to observe the appropriate protocols pertaining to confidential and sensitive information. ORDERS 29I make the following orders: 29.1 Paragraph (1) of the Summons for Production dated 2 December 2010 be amended to read as follows: Documents (however described) which relate to complaints made or grievances lodged against Mr Les Simons during the period 26 May 2007 to date including any documents relating to the investigation, disciplinary or otherwise into the conduct of Mr Les Simons and any action taken in relation to such complaints (including, but not limited to, complaints made by Amjad Maaya and Neil Bailey); Otherwise, the Amended Notice of Motion is refused. 29.2 The Union shall observe the appropriate protocols pertaining to confidential and sensitive information. 29.3 The Council is to comply with the Summons for Production, as amended, by close of business on Tuesday, 11 January 2010. 30The matter is adjourned to 10 am on 1 and 2 March 2011 for hearing of the substantive matter. I Tabbaa COMMISSIONER DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 12 January 2011