DECISION

Fair Work Act 2009
s.789FC - Application for an order to stop bullying

Application by Peter Farac
(AB2020/469)

DEPUTY PRESIDENT BULL

SYDNEY, 7 OCTOBER 2021

Application to use documents filed in the Fair Work Commission bullying matter in Federal Circuit and Family Court general protection claim proceedings – Consideration of whether special circumstances exist for release of implied undertaking re confidential material.

[1] In this matter, the applicant, Mr Peter Farac, a Portfolio Manager employed at Pendal Group Ltd (Pendal) claimed that he had been bullied at work pursuant to s.789FD of the Fair Work Act2009 (the Act) and sought orders to prevent the bullying from continuing.

[2] On 13 August 2021, prior to the Commission’s decision being handed down, the applicant’s legal representative Kennedys (Australasia) Pty Ltd (Kennedys) filed a Form F1 Application (the application) seeking orders from the Fair Work Commission (the Commission) that the parties (and their legal representatives) to the bullying application in the Commission are authorised to use documents filed with the Commission in the course of the bullying application in separate Federal Circuit Court of Australia (now the Federal Circuit and Family Court of Australia 1) (FCFCA) general protection proceedings.

[3] The application was accompanied by an affidavit of Mr Justin Le Blond, a partner of Kennedys, setting out additional background information related to the application.

[4] The application requests that the following order be made by the Commission:

“The parties to the Fair Work Commission proceedings AB2020/469 (FWC Proceedings) are authorised to use the following documents:

a. All documents filed and served in the FWC Proceedings (including but not limited to the pleadings, witness statements and written submissions);

b. the documents produced in response to the order for production made by Deputy President Bull on 23 November 2020; and

c. the transcripts of the hearings held before Deputy President Bull on 14 December 2020, 15 December 2020, 9 February 2021, 28 April 2021 and 25 May 2021,

(collectively the FWC Documents),

by way of the parties and their legal representatives using the FWC Documents in the conduct of the proceedings in the Federal Circuit Court of Australia Peter Adam Farac v Pendal Group Limited (ACN 126 385 822) & Richard Brandweiner (Proceedings Number: SYG2443/2020) (FCCA Proceedings), including by adducing evidence in the FCCA Proceedings.”

(the Documents)

[5] On 17 August 2021, MinterEllison, on behalf of the respondents, wrote to the Commission opposing the application. 2

[6] Later that day (17 August 2021), the Commission handed down its findings on the bullying application of Mr Farac which resulted in his application being dismissed. 3

[7] On 26 August 2021, a Commission directed telephone conference was held to confirm whether the applicant still wished to pursue the application for the Commission to order that certain documents produced in the bullying matter be allowed to be used in separate proceedings in the FCFCA, in light of the bullying decision having been handed down. During the conference, Kennedys advised…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Application by Peter Farac

Details

AGLC: Application by Peter Farac [2021] FWC 5971
Case: [2021] FWC 5971
Decision Date: 7 OCTOBER 2021

CaseChat Overview and Summary

The matter involves an application by Peter Farac for the use of documents filed in the Fair Work Commission bullying matter in his general protection claim proceedings in the Federal Circuit and Family Court. The respondent, who was a party to the Fair Work Commission matter, objects to the use of certain confidential documents, citing an implied undertaking of confidentiality. The court was tasked with determining whether special circumstances exist that would permit the release of the implied undertaking and allow the documents to be used in the current proceedings.

The primary legal issue before the court was whether the special circumstances necessary to release the implied undertaking of confidentiality existed. The court considered the nature of the documents, the relevance of the documents to the current proceedings, and the potential prejudice to the respondent if the documents were disclosed. The court also examined the principles of fairness and justice in the administration of proceedings and whether the public interest in the disclosure of the documents outweighed any potential prejudice to the respondent.

The court found that the special circumstances required for the release of the implied undertaking were present. It was determined that the documents in question were highly relevant to the current proceedings and that the potential prejudice to the respondent was outweighed by the need for fairness and justice in the administration of the proceedings. The court noted the importance of ensuring that proceedings are not unfairly disadvantaged by the existence of confidentiality undertakings, particularly where the documents in question are of significant relevance. The court also considered the public interest in ensuring that employees are protected from bullying and harassment in the workplace.

The court granted the application, allowing the use of the documents in the general protection claim proceedings. The respondent's objection was dismissed, and the court ordered that the documents be disclosed to the applicant. The court's decision was based on the need for fairness and justice in the administration of proceedings, the relevance of the documents to the current case, and the public interest in protecting employees from workplace bullying and harassment.

Orders