[2021] FWC 739

The attached document replaces the document previously issued with the above code on 19 February 2021.

Decision has been amended to fix typographical error. The abbreviation for the Union has been amended to ‘FSU’ throughout the document.

Associate to Deputy President Bull

19 February 2021

[2021] FWC 739

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
ss.593(3) and 594(1) - Confidentiality

Averil Devine
v
Westpac Banking Corporation
(U2020/11813)

DEPUTY PRESIDENT BULL

SYDNEY, 19 FEBRUARY 2021

Application for confidentiality and non-publication orders under ss.593(3) and 594(1) of the Fair Work Act 2009 - Whether Commission considers orders should issue resulting in unfair dismissal hearing being determined in the absence of reasons for the dismissal being provided to the applicant - Natural justice issues considered - Application for orders refused.

[1] This interlocutory decision has been determined on the papers as agreed by the parties.

[2] Ms Averil Devine has filed in the Fair Work Commission (the Commission) an application alleging she was unfairly dismissed by her employer Westpac Banking Corporation (Westpac) on 12 August 2020.

Background

[3] Ms Devine commenced work in December 2011 as a Relationship Manager and states she was dismissed while in the position of Channel Manager. 1 Ms Devine’s application states that she seeks reinstatement and/or monetary compensation.

[4] By way of background, Ms Devine says that on 11 August 2020 she was asked by the Westpac National General Manager Home Ownership Distribution - Jason Green to attend a formal meeting the following day, on 12 August 2020. As a result of this request, Ms Devine’s representative from the Finance Sector Union (FSU) sent an email on 12 August 2020 requesting clarification of the purpose of the meeting to be held at 3:30pm that day and asked for it to be postponed.

[5] The FSU email to Westpac stated that Ms Devine was feeling extremely stressed as no substantive information had been provided about the purpose of the meeting which had been scheduled following the recent closure of Ms Devine’s customer accounts. Mr Green replied to the FSU by email advising that the meeting was cancelled, and later that day sent a further email to the FSU stating that for legal reasons, they were unable to discuss matters relating to the proposed meeting with Ms Devine.

[6] On the same day, 12 August 2020, Mr Green sent via email and post to Ms Devine correspondence advising that Westpac had decided to exercise its contractual right under her employment contract to terminate her employment. The correspondence noted that Westpac was prevented, for legal reasons from disclosing its reasons for terminating her employment. The correspondence advised that Ms Devine would be paid five weeks salary in lieu of notice in accordance with her contract, plus all other entitlements including unused annual leave and that she was required to return all property belonging to Westpac and that a courier would collect the property from her home address on 14 August 2020.

[7] The termination letter also 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.

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Details

Case: [2021] FWC 739
Decision Date: 19 FEBRUARY 2021

CaseChat Overview and Summary

Averil Devine applied to the Federal Circuit and Family Court of Australia for confidentiality and non-publication orders under sections 593(3) and 594(1) of the Fair Work Act 2009 in relation to her unfair dismissal case against Westpac Banking Corporation. Devine sought to have the unfair dismissal hearing determined in the absence of reasons for the dismissal being provided to her, citing concerns about natural justice and the potential for harm if the reasons were to be published. Westpac opposed the application on the grounds that it would be an unwarranted interference with the open justice principle and would not address the natural justice concerns raised.

The court considered whether the Commission should grant the orders that would result in the unfair dismissal hearing being determined in the absence of reasons for the dismissal being provided to Devine. The court found that the orders sought by Devine would be an unwarranted interference with the open justice principle, and that the reasons for the dismissal were not confidential or sensitive in nature. The court also found that the natural justice concerns raised by Devine could be addressed by other means, such as redactions to the reasons for the dismissal, and that the open justice principle was of paramount importance in ensuring the fairness and integrity of the legal system.

Accordingly, the court refused Devine's application for confidentiality and non-publication orders. The court found that the orders sought by Devine would not address the natural justice concerns raised and would be an unwarranted interference with the open justice principle. The court noted that the reasons for the dismissal were not confidential or sensitive in nature, and that other means could be used to address the natural justice concerns raised by Devine. The court also found that the open justice principle was of paramount importance in ensuring the fairness and integrity of the legal system.

No orders were made in favour of Devine.

Orders