REFERRAL TO COMMISSION UNDER PUBLIC SECTOR MANAGEMENT ACT 1994

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

CITATION : 2017 WAIRC 00211

DELIVERED : WEDNESday, 12 April 2017

FILE NO. : APPL 66 OF 2016

Applicant

AND

Department of Education

Respondent

CatchWords : Practice and procedure - Discovery, inspection and production of documents - Relevant principles - Order made

Legislation : Industrial Relations Act 1979 (WA) s 27(1)(o)

Result : Applications for production of documents dismissed

Representation:

Applicant : Mr L Magyar

Respondent : Ms R Hartley (of counsel)

Case referred to in reasons:

Australian Liquor, Hospitality and Miscellaneous Workers Union, Miscellaneous Workers Division, Western Australian Branch v Burswood Resort (Management) Ltd (1995) 75 WAIG 1801

Reasons for decision

1         Mr Magyar has referred to the Commission the Department of Education’s finding that he committed a breach of discipline when he disobeyed a direction.  The direction was not to alter his classroom without consulting his line manager, which the Department says Mr Magyar did when he established a standalone computer in his classroom.  Mr Magyar also disagrees with the penalty imposed, which was a reprimand and a fine of one day’s pay. 

2         I will hear Mr Magyar’s referral under the Public Sector Management Act 1994 (WA) next month. 

3         In the meantime, Mr Magyar has made four interlocutory applications.  He wants me to order the Department to produce the documents in his four applications.  Mr Magyar wants a large number of documents and he requests the same documents more than once.  The Department says I should not order it to produce the documents. 

4         I must decide whether the documents Mr Magyar wants are necessary to resolve the matter in dispute.  To do that, I must decide whether the documents are relevant to the four questions I will answer when deciding Mr Magyar’s referral:

1. Did the Department direct Mr Magyar not to alter his classroom without consulting his line manager?
2. If so, was that direction a lawful order?
3. If so, did Mr Magyar disobey the lawful order?
4. Should there have been a lesser penalty or no penalty?

What documents does Mr Magyar want?

5         I understand Mr Magyar wants:

1. the documents Mr Magyar describes in his applications under the headings: Credit Card Misuse Allegation, Inappropriate Use of Computer System Allegation, Standards and Integrity Investigation Report (Aug 1 2016); 
2. complaint files related to a matter referred by the Department to the Crime and Corruption Commission; and 
3. documents Mr Currie has that relate to an allegation that Mr Magyar configured the standalone computer so his students could access the internet without the Department’s restrictions. 

Are the documents necessary to resolve the matter in dispute?

6         Mr Magyar says the documents are necessary because they provide context to his application and he needs them to prepare his outline of evidence. 

7         Mr Magyar says the Standards and Integrity Investigation Report includes statements by Mrs Diver that impugn his character and undermine his credibility.  Mr Cottrell makes similar statements.  Mrs Diver and Mr Cottrell are likely to be the Department’s main witnesses.  He needs the documents to respond to their statements and to cross-examine them.  Mr Magyar says the allegation that he configured the standalone computer so that his students could access the internet without the Department’s restrictions is ‘what this case is all about’. 

8         The Department says Mr Magyar does not need the documents for his outline of evidence.  It will not call Mrs Diver or Mr Cottrell as witnesses. It has not made findings against Mr Magyar about credit card misuse or attempting to reconfigure the Department’s computer network.  In summary, the Department says the documents are not relevant to the finding or penalty in issue. 

9         Discovery is confined to what is in issue on the pleadings (here, the notice of referral and notice of answer). The Commission can only make an order for discovery under s 27(1)(o) of the Industrial Relations Act 1979 (WA) if it is just to do so and necessary for the fair disposal of the case.  ‘Just’ means ‘right and fair, having reasonable and adequate grounds to support it, well-founded and conformable to a standard of what is proper and right’: Australian Liquor, Hospitality and Miscellaneous Workers Union, Miscellaneous Workers Division, Western Australian Branch v Burswood Resort (Management) Ltd (1995) 75 WAIG 1801, 1805.

10      Mr Magyar’s notice of referral is not particularised.  It simply says that he refers to the Commission the decision or finding made on 12 October 2016 because he was denied natural justice.  He seeks compensation for leave without pay taken to attend Commission hearings and ‘[t]hat [the] disciplinary findings are deemed a miscarriage of justice.’

11      In summary, the documents Mr Magyar wants relate to allegations that Mr Magyar misused a credit card and inappropriately used a computer system and to concerns that Mr Magyar has with the Standards and Integrity Investigation Report.  Those are not findings the Department made and they are not findings Mr Magyar referred to the Commission.  The documents go to matters beyond the scope of what is in issue here. 

12      Contrary to Mr Magyar’s argument, this matter is not about whether he configured the standalone computer so that his students could access the internet without the Department’s restrictions.  This matter is about the Department’s finding that Mr Magyar committed a breach of discipline when he disobeyed the direction not to alter his classroom without consulting his manager and the penalty that the Department imposed. 

13      I am not persuaded that the documents Mr Magyar wants are necessary to resolve the matter in dispute.  The documents are not necessary for Mr Magyar to prepare his outline of evidence and are not relevant to the cross-examination of any witnesses.  The documents are not relevant to the four questions that I will answer when deciding Mr Magyar’s referral.  It would not be just to order the Department to produce them.

14      Mr Magyar’s applications for the production of documents are dismissed.