Discovery of the applicant’s family court documents was ordered because it was deemed relevant to the claims, specifically in assessing the respondent’s allegations of deceit and gaining an advantage, and not considered oppressive.

The applicant filed an unfair dismissal application and denied contractual benefit claim against his former employer, the respondent. The hearing for these claims was scheduled for 15 and 16 November 2023. On 3 November 2023, the respondent filed an application requesting discovery of "Remuneration Documents," specifically those related to the applicant’s divorce and family law proceedings. The respondent argued that these documents were relevant to the issues in the proceedings, particularly to the applicant’s credibility and his motivation for the Pay Banking Arrangement, a matter under contention.

The respondent contended that the applicant voluntarily raised his divorce proceedings during the disciplinary process leading to his dismissal, and this disclosure might explain his motivation for the Pay Banking Arrangement. The respondent asserted that the family court disclosures could be relevant to the appropriateness of reinstatement and whether the applicant deliberately misled the respondent. On the other hand, the applicant opposed the discovery request, arguing that the family court disclosures were irrelevant to the claims and were an invasion of his privacy. He emphasised that his motive for entering the Pay Banking Arrangement was not necessary to establish serious misconduct.

Commissioner Tsang determined that an order for discovery should be made under section 27(1)(o) of the Industrial Relations Act 1979 (WA). Commissioner Tsang found the family court disclosures relevant to the claims, particularly in assessing the respondent’s allegations of deceit and gaining an advantage. Commissioner Tsang deemed the order for discovery not oppressive, noting that the parties agreed it would not delay the upcoming hearing and that any confidential information in the documents could be redacted.

The decision can be read here.