Watton v TAFE Queensland (No.2)
[2021] QIRC 299
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- Unreported Judgment
- Watton v TAFE Queensland (No.2)[2021] QIRC 299
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Watton v TAFE Queensland (No.2)[2021] QIRC 299
Watton v TAFE Queensland (No.2)[2021] QIRC 299
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: PARTIES: | Watton v TAFE Queensland (No.2) [2021] QIRC 299 Watton, Rodney Peter (Applicant) v TAFE Queensland (Respondent) | |
CASE NOS: | B/2021/1 & GP/2021/11 | |
PROCEEDING: | Application in existing proceedings | |
DELIVERED ON: | 30 August 2021 | |
MEMBER | Hartigan IC | |
HEARD AT: | Brisbane | |
HEARING DATE | 18 August 2021 | |
ORDERS: |
| |
CATCHWORDS: | GENERAL PROTECTIONS – BULLYING – application in existing proceedings for disclosure – whether the disclosure order sought for each category of disputed documents is to be made or not – where some documents do not directly relate to an allegation in issue in the proceedings – where Respondent opposes disclosure of certain categories of documents on the grounds of relevance | |
LEGISLATION: | Industrial Relations (Tribunals) Rules 2011 (Qld), r 46 | |
CASES: | Bond v State of Queensland and Ors (No. 2) [2020] QIRC 078 Kelsey v Logan City Council & Ors (No. 6) [2018] QIRC 115 | |
APPEARNCES | Mr R. Watton for the Applicant Mr E. Shorten of Counsel, instructed by Crown Law, for the Respondent | |
Reasons for Decision
- [1]Mr Watton has filed an application within this proceeding seeking orders for disclosure. The application is made following the parties having already engaged in disclosure in accordance with the Queensland Industrial Relations Commission’s order of 14 May 2021 and r 46 of the Industrial Relations (Tribunals) Rules 2011 (Qld) ("Tribunal Rules").
- [2]The substantive application involves a bulling application (B/2021/1) and a general protections application (GP/2021/11) commenced by Mr Watton and arising out of incidents that are alleged to have occurred involving Mr Watton and his workplace at TAFE Queensland. An order was made that the proceedings be joined on 7 May 2021.
- [3]Mr Watton filed a table identifying the documents he sought disclosure of. The table has been amended to include a column listing the documents from “a” to “x” as follows:
Doc No | Para No. | Description / Name of Document |
a | 1 | Audio recording of meeting with Brian Heim on 14 June 2018. |
b | 2 | Applicant’s crossing the bridge assessment, 2015 |
c | 2 | Applicant’s letter of permanent appointment, 2015. |
b | 2 | Email to Dr Brian Heim re PD for Advanced Diploma of Construction Management |
e | 3 | Emails from Dr Ian Wells regarding the implementation of the Bachelor of Civil Engineering Technology (BCET) |
f | 3 | University of Canberra’s approved teachers list for the BCET |
g | 3 | Teacher/ lecturer allocation of units for the BCET |
h | 3 | Emails and reports from Dr Allan Beasley relating to the BCET |
i | 4 | Original roster for S2 2018 roster for CEA202 Project Management |
j | 4 | S2 2018 class allocations for CEA202 Project management to included teacher grade entries |
k | 5 | Ms Jade Salmond’s qualifications at the time of employment as Team Manager |
l | 5 | Ms Jade Salmond’s curriculum vitae at the time of employment as Team Manager |
m | 5 | Email exchange between Ms Jade Salmond and the Applicant on or around 6 July 2018. |
n | 5 | Email from Dr Allan Beasey to the Applicant on 7 November 2018 at 202pm. |
o | 5 | Dr Allan Beasley’s comments noted in the initial meeting minutes of the ADCE course review |
p | 5 | Emails and reports from Dr Allan Beasley regarding the BCET |
q | 6 | Letter dated 8 April 2019, outcome of workplace bullying complaint |
r | 6 | All job applications, advertisements and position descriptions and outcomes, the Applicant applied for since January 2018. |
s | 6 | Email from TQ to the Applicant, which had the attached Form 17, regarding the withdrawal of matter B/2019/62 |
t | 6 | Employment contracts, qualification and curriculum vitae for Fred Sprogg |
u | 6 | The Applicant’s rosters as original scheduled for s1 2021 and as at 4 January 2021. |
v | 6 | Employment contracts for VET teachers teaching VET project management courses for s1 2021 |
w | 7 | Documents relating to disciplinary action taken against another TQB employee (Tom Grice) for the same unprofessional conduct offence. |
x | 8 | TQ email to potential witnesses regarding cooperation with the Applicant on matter B/2021/1 |
- [4]At a hearing of the application on 18 August 2021, Mr Watton identified that he no longer wished to press the application insofar as it relates to the documents identified as (a), (b), (c), (m), (n), (o), (p), (q), (t), (w) and (x).
- [5]Further, during the course of its submissions, the Respondent identified that it would agree to further discovery in relation to documents (d), (e), (f), (g), (h), (r), (s) and (u).[1]
- [6]Consequently, the categories of documents left for the Commission to determine whether an order for disclosure should be made relate to those documents listed at (i), (j), (k), (l) and (v) of the table.
- [7]On 24 August 2021, the parties supplied separate draft orders to the Commission which incorporated their respective positions. I will deal with the draft orders further below.
Duty of disclosure
- [8]Rule 46(1) of the Tribunals Rules provides for disclosure in the following terms:
46 Duty of disclosure
- (1)If a directions order requiring disclosure of documents is made, a party must disclose any document that—
- (a)is relevant to the proceeding or a matter in issue in the proceeding; and
- (b)is in, or comes into, the possession of the party.
- (2)A party must act under subrule (1) until the proceeding is concluded or the matter in issue is admitted, withdrawn, struck out or otherwise disposed of.
- (3)Subrule (1) does not apply to a document in relation to which there is a valid claim to privilege from disclosure.
- [9]By operation of r 46 of the Tribunals Rules, the obligation in respect of disclosure applies to documents relevant to an allegation in issue in the proceedings. Where disclosure has been made by a party, another party seeking further disclosure must establish that there are documents in the possession or power of the other party which are relevant to an issue in dispute which have not been disclosed by that other party.
- [10]Mr Watton and the Respondent have each respectively filed a Statement of Facts and Contentions and Response to the Applicant’s Statement of Facts and Contentions. At an earlier hearing, the Commission granted leave for Mr Watton to file an Amended Statement of Facts and Contentions on 28 May 2021 ("ASOFC") and the Respondent to file an Amended Response to the Applicant’s Statement of Facts and Contentions on 25 June 2021 ("RASOFC") .
- [11]The purpose of the Statement of Facts and Contentions is to allow each party to properly set out and particularise the relevant facts and legal contentions raised in order to place the Commission and other party on notice as to what the parties’ respective case will be. Whilst not formally recognised as such, the Statement of Facts and Contentions have a function akin to pleadings.[2]
- [12]Accordingly, when determining whether a document, or category of documents is directly relevant, I will do so by considering whether the document or category of documents is directly relevant to an allegation in issue as identified in the ASOFC and RASOFC. The "directly relevant" test set out in r 46 of the Tribunals Rules is intended to impose a threshold on the process of discovery.[3]
Document i – original roster for S2 2018 roster for Project Management
Document j – S2 2018 class allocations for CEA202 Project Management to include teacher grade entries
- [13]Mr Watton contends that these documents are each relevant to an allegation in paragraph 20(f) of his ASOFC which states:
'In July 2018 Team Manager, Jade Salmond, contacted the Applicant while he was on carer's leave to advise that the Applicant would have to teach the Certificate IV in Project Management as she had allocated herself a tutorial within CEA202 Project Management, Note:
…
- (f)The Applicant had not taught the VET course for more than five years and the VET course had changed significantly since that time.'
- [14]The Respondent’s RASOFC at paragraph 20(f) relevantly responds as follows:
'As to [20] of the Contentions, the Respondent:
f. Says that in Semester 2 of 2018, there was only one group of students where there would usually be 2 – 3 groups of students and that the unusually small intake of students had reduced the Applicant’s and other staff members’ teaching hours. Ms Salmond spoke with Dr Heim and developed the following options for the Applicant:
- (i)The Applicant could teach the Certificate IV in Project Management to make up the deficit in his teaching hours;
- (ii)The Applicant could take paid recreational leave to make up the deficit in hours; or
- (iii)The Applicant’s teaching fraction could be reduced;'
- [15]As is apparent, from the above paragraphs of the ASOFC and the RASOFC, the documents requested do not directly relate to an allegation in issue in the proceeding. Relevantly, paragraph 20(f) of the ASOFC does not refer to the original roster for Semester two, 2018 or the teacher grade entries for the class allocations. Relevantly, the substance of the allegation is that in July 2018, Ms Salmond advised Mr Watton that he would have to teach the Certificate IV in Project Management, that Ms Salmond had allocated herself a tutorial within CEA202 Project Management, and that Mr Watton had not taught the VET course for more than five years and the VET course had significantly changed in that time.
- [16]I do not consider on the state of the ASOFC and RASOFC that the original roster for Semester two, 2018 for CEA202 Project Management or the teacher grade entries for the class allocations are directly relevant to the issues raised in paragraph 20(f) of the ASOFC or at all.
Document k – Ms Jade Salmond’s qualifications at the time of employment as Team Manager
Document l - Ms Jade Salmond’s curriculum vitae at the time of employment as Team Manager
- [17]Mr Watton contends that these documents relate to paragraph 21 of his ASOFC which states as follows:
'During semester two 2018 (July to November) the Applicant observed that there was a lot of meetings occurring amongst the other team members from which he was excluded'
- [18]The Respondent does not admit the allegation contained in paragraph 21.
- [19]It appears that Mr Watton seeks information pertaining to Ms Salmond's qualifications and curriculum vitae in order to allege that he was more qualified. It is difficult to accept that such information would be relevant to Mr Watton's claim more generally, but, in any event, Ms Salmond's qualifications or experience is clearly not an allegation in issue in the ASOFC, including at paragraph 21. I do not consider that documents (k) and (l) are directly relevant to an allegation in issue in the proceedings.
Document v - Employment contracts for VET teachers teaching VET project management courses for s1 2021
- [20]Mr Watton relies on paragraph 48 of his ASOFC in support of his request for these documents. Paragraph 48 of the ASOFC is in the following terms:
'On Monday 18 January 2021 Faculty Director, Brian Heim, contrary to s 282(1)(c) altered the Applicant’s position to the Applicant’s prejudice and emailed the Applicant reallocating duties for semester one 2021 with a requirement for the Applicant to demonstrate currency in subjects that, which was impossible for the Applicant to demonstrate currency in, due to the Applicant’s professional development focusing on law and project management for the past four years.'
- [21]The employment contracts or conditions of employment of VET Teachers teaching VET Project Management courses for semester 1 2021 is not a matter raised by the ASOFC including at paragraph 21. Document (v) is not a document that is directly relevant to an allegation in the ASOFC and the RASOFC.
- [22]Mr Watton has failed to establish that documents (i), (j), (k), (l) and (v) are directly relevant to the allegations in issue in the proceedings. I decline to make orders for discovery of these documents.
Draft Directions Order
- [23]In addition to the application for discovery, a separate application brought by the Respondent was heard at the hearing on 18 August 2021. That application was filed on 11 August 2021 and sought to set aside Attendance Notices to Give Evidence.
- [24]After hearing from the parties, I adjourned the hearing for approximately 20 minutes to allow the parties to discuss the matter. After resuming the hearing, I was advised that the parties had agreed to a way forward to address each of their respective concerns regarding the Attendance Notices to Give Evidence.
- [25]That proposal includes, inter alia, that Mr Watton issue a Notice to Admit Documents and bundle of documents that he intends to use in the cross examination of those witnesses. The terms of that agreement have been included in draft orders produced by the parties. I will make orders in terms of the draft orders, but as amended by me so that step occurs by 4:00pm on 3 September 2021.
- [26]At the conclusion of the submissions with respect to the discovery application, I requested that the parties provide draft consent orders reflecting the concessions made by the parties during the course of the hearing. Unfortunately, the parties were unable to come to a consent position.
- [27]One point of difference, apart from a failure to agree to dates, was that Mr Watton sought the following amendment as (underlined) to draft order 2 as follows:
'a. The Applicant does not press for disclosure of documents in categories (a), (b), (c), (m), (n), (o), (p), (q), (t), (w) and (x) unless the Applicant is granted leave to amend the Applicant's statement of facts and contentions.'
- [28]The amendments to paragraph 2 sought by Mr Watton on 24 August 2021, appears to relate to a further application in existing proceedings that he filed following the hearing of this application on 18 August 2021. The application does not identify the particulars of the amendments to the ASOFC sought but seems to envisage a "full rewrite of the statement of facts and contentions."
- [29]As the application to amend was not before the Commission during the hearing of this application and, further, there is no particularity provided regarding the amendments and the Respondent have yet to be provided with an opportunity to respond, I decline to make an order in the terms of order 2 sought by Mr Watton.
- [30]As the documents referred to in order 2 were not pressed by Mr Watton during the hearing it is unnecessary for me to make any orders with respect to those categories of documents.
Orders
- [31]I will issue orders in the terms of the draft orders provided by the Respondent but as amended by me as follows:
Applicant’s application for disclosure filed 19 July 2021
- The categories of disclosure sought by the Applicant be identified as follows for the purpose of the following orders:
d | “Email to Dr Brian Heim re PD for Advanced Diploma of Construction Management” |
e | “Emails from Dr Ian Wells regarding the implementatioin [sic] of the Bachelor of Civil Engineering Technology (BCET) ” |
f | “University of Canberra’s approved teachers list for the BCET” |
g | “Teacher/ lecturer allocation of units for the BCET” |
h | “Emails and reports from Dr Allan Beasley relating to the BCET” |
i | “Original roster for S2 2018 roster for CEA202 Project Management” |
j | “S2 2018 class allocations for CEA202 Project management to included teacher grade entries” |
k | “Ms Jade Salmond’s qualifications at the time of employment as Team Manager” |
l | “Ms Jade Salmond’s curriculum vitae at the time of employment as Team Manager” |
r | “All job applications, advertisements and position descriptions and outcomes, the Applicant applied for since January 2018. ” |
s | “Email from TQ to the Applicant, which had the attached Form 17, regarding the withdrawal of matter B/2019/62” |
u | “The Applicant’s rosters as original scheduled for s1 2021 and as at 4 January 2021. ” |
v | “Employment contracts for VET teachers teaching VET project management courses for s1 2021”. |
- By 4.00pm on Wednesday 1 September 2021, the Applicant provide the Respondent with any further information sufficient to enable the Respondent to locate any further documents that are in its possession and control and to which the Respondent has no legal claim to privilege which answer category (r).
3 By 4.00pm on Friday 3 September 2021, the Respondent supply to the Applicant copies of documents answering categories (d), (r), (s) and (u) that are in its possession and control and to which the Respondent has no legal claim to privilege.
- By 4.00pm on Friday 3 September 2021, the Respondent, in lieu of category (e), supply to the Applicant copies of documents that are in its possession and control and to which the Respondent has no legal claim to privilege which answer the following category: “E-mails from Dr Ian Wells to Mr Watton or Mr Adcock in 2016 and 2017 regarding the implementation of the Bachelor of Civil Engineering Technology (BCET)”.
- By 4.00pm on Friday 3 September 2021, the Respondent, in lieu of categories (f) and (g), supply to the Applicant copies of documents that are in its possession and control and to which the Respondent has no legal claim to privilege which answer the following category: “Documents showing whether Mr Watton had been allocated subjects relating to contract management and project management during 2016 and 2017”.
- By 4.00pm on Friday 3 September 2021, the Respondent, in lieu of category (h), supply to the Applicant copies of documents that are in its possession and control and to which the Respondent has no legal claim to privilege which answer the following category: “An email sent by TAFE QLD from Mr Don Robertson attaching the report and feedback from the initial meeting in Semester 2 of 2018”.
- The application, insofar as it relates to the documents listed in categories (i), (j), (k), (l) and (v), is dismissed.
Respondent’s application filed 11 August 2021 to set aside Attendance Notices to Give Evidence
- By 4.00pm on Friday 3 September 2021, the Applicant serve on the Respondent any Form 25 – Notice to Admit documents and bundle of documents (being documents the Applicant intends to use in his cross-examination) for each of the following witnesses that the Respondent intends to call:
a. Ms Angela Petie;
b. Dr Brian Heim;
c. Dr Ian Wells;
d. Dr Paul Wilson; and
e. Ms Jade Salmond.
Schedule A
It is ordered that:
Applicant's application filed in the Industrial Registry on 19 July 2021 for disclosure
- The categories of disclosure sought by the Applicant be identified as follows for the purpose of the following orders
d | “Email to Dr Brian Heim re PD for Advanced Diploma of Construction Management” |
e | “Emails from Dr Ian Wells regarding the implementatioin of the Bachelor of Civil Engineering Technology (BCET) ” |
f | “University of Canberra’s approved teachers list for the BCET” |
g | “Teacher/ lecturer allocation of units for the BCET” |
h | “Emails and reports from Dr Allan Beasley relating to the BCET” |
i | “Original roster for S2 2018 roster for CEA202 Project Management” |
j | “S2 2018 class allocations for CEA202 Project management to included teacher grade entries” |
k | “Ms Jade Salmond’s qualifications at the time of employment as Team Manager” |
l | “Ms Jade Salmond’s curriculum vitae at the time of employment as Team Manager” |
r | “All job applications, advertisements and position descriptions and outcomes, the Applicant applied for since January 2018. ” |
s | “Email from TQ to the Applicant, which had the attached Form 17, regarding the withdrawal of matter B/2019/62” |
u | “The Applicant’s rosters as original scheduled for s1 2021 and as at 4 January 2021. ” |
v | “Employment contracts for VET teachers teaching VET project management courses for s1 2021”. |
- By 4.00pm on Wednesday 1 September 2021, the Applicant provide the Respondent with any further information sufficient to enable the Respondent to locate any further documents that are in its possession and control and to which the Respondent has no legal claim to privilege which answer category (r).
- By 4.00pm on Friday 3 September 2021, the Respondent supply to the Applicant copies of documents answering categories (d), (r), (s) and (u) that are in its possession and control and to which the Respondent has no legal claim to privilege.
- By 4.00pm on Friday 3 September 2021, the Respondent, in lieu of category (e), supply to the Applicant copies of documents that are in its possession and control and to which the Respondent has no legal claim to privilege which answer the following category: “E-mails from Dr Ian Wells to Mr Watton or Mr Adcock in 2016 and 2017 regarding the implementation of the Bachelor of Civil Engineering Technology (BCET)”.
- By 4.00pm on Friday 3 September 2021, the Respondent, in lieu of categories (f) and (g), supply to the Applicant copies of documents that are in its possession and control and to which the Respondent has no legal claim to privilege which answer the following category: “Documents showing whether Mr Watton had been allocated subjects relating to contract management and project management during 2016 and 2017”.
- By 4.00pm on Friday 3 September 2021, the Respondent, in lieu of category (h), supply to the Applicant copies of documents that are in its possession and control and to which the Respondent has no legal claim to privilege which answer the following category: “An email sent by TAFE QLD from Mr Don Robertson attaching the report and feedback from the initial meeting in Semester 2 of 2018”.
- The application, insofar as it relates to the documents listed in categories (i), (j), (k), (l) and (v), is dismissed.
Respondent’s application filed in the Industrial Registry on 11 August 2021 to set aside Attendance Notices to Give Evidence
- By 4.00pm on Friday 3 September 2021, the Applicant serve on the Respondent any Form 25 – Notice to Admit documents and bundle of documents (being documents the Applicant intends to use in his cross-examination) for each of the following witnesses that the Respondent intends to call:
- (a)Ms Angela Petie;
- (b)Dr Brian Heim;
- (c)Dr Ian Wells;
- (d)Dr Paul Wilson; and
- (e)Ms Jade Salmond.