CASE PROCEDURES – evidence – production of documents – ss.394, 590 Fair Work Act 2009 – application for unfair dismissal remedy – applicant dismissed for serious misconduct based on allegations of sexual harassment toward a number of crew members – applicant sought production of documents on 10 and 11 May 2016 – respondent objected to order being made with respect to documents in 1, 3 and 4 based on legal privilege – further submitted that order for documents was nothing more than a ‘fishing expedition’ – both parties agreed that principles set out in [Commissioner of Taxation v Pratt Holdings P/L] applied – ‘if the dominant purpose for which a document comes into existence is to get legal advice, the document is privileged, and the time at which ‘dominant purpose is determined is the time the document came into existence’ – in exercising its discretionary power in s.590(1) FW Act, the Commission must do so in a manner which is fair, just and quick, informal and avoids unnecessary technicalities’ – Commission found from material provided by parties, applicant terminated due to his conduct – found applicant terminated following investigation into various allegations – applicant confined order only to the investigation which led to his dismissal – Commission found request for documents not a ‘fishing expedition’ but appropriately narrow and relevant to dismissal – considered whether documents attracted legal advice privilege as per [Pratt] – found that documents created had to be created regardless of any intention to seek advice – also found that may have been some parts of those documents that were only created for purpose of receiving legal advice – Commission found in first instance, documents in 1, 3 and 4 to be provided to Commission unredacted – Commission will subsequently determine whether part or all attract legal professional privilege. Applicant v Respondent
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