Emma Sidney v Employsure Pty Ltd

[2016] FWC 2009

[2016] FWC 2009

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Emma Sidney
v
Employsure Pty Ltd
(U2015/6453)

COMMISSIONER BISSETT MELBOURNE, 1 APRIL 2016

Application for relief from unfair dismissal - Application for a Confidentiality Order - application granted.

[1] On 11 December 2015 I issued a decision 1 (the unfair dismissal decision) in which I determined that Ms Emma Sidney had been unfairly dismissed from her employment with Employsure Pty Ltd (Employsure). As no party had been prepared to argue remedy I issued further directions to hear and determine the question of remedy.

[2] On 17 March 2016 I issued a further decision 2 (the compensation decision) in which I determined that Ms Sidney should be awarded $20,299.56 plus superannuation in compensation for the dismissal. In making that decision I relied on submissions and evidence put to me by Ms Sidney and Employsure. The relevant evidence and submissions were outlined in my decision. That decision was published on the Fair Work Commission (FWC) website and reported in the FWC Weekly Bulletin.

[3] Following publication of the compensation decision, Employsure made an application pursuant to s.594(1) of the Fair Work Act 2009 (the Act) to prohibit publication of the decision or, in the alternative, prohibit publication of specified parts of the decision.

[4] On receipt of the application I issued an interim order granting the application to prohibit publication of the decision pending determination of this application.

[5] Prior to considering the matter proper it should be noted that at no time in the hearing in relation to the unfair dismissal decision or the compensation decision did Employsure seek any orders prohibiting publication of any material or evidence presented in the case, nor did it seek an order prohibiting publication of the decision. Had it done so such an application would have been considered and orders, as appropriate, made.

[6] On receipt of the application for orders under s.594 of the Act the material was forwarded to Ms Sidney to enable her to make submissions, should she wish, on the application. A brief submission was received from Ms Sidney on 30 March 2016.

[7] Given that there are no contested facts in relation to the application, and with the agreement of the parties, I have determined the application on the basis of the materials provided.

Submissions

[8] Employsure described itself as a ‘disruptor’ in the industrial relations sector with no like for like competitor prior to August 2015. It argued that its substantial growth since entering the Australian market was due to its unique sales model. Since late 2015 a number of competitors have entered the market.

[9] Employsure argued that matters set out in the compensation decision in relation to remuneration and commission structures, sales targets, results and cancellation rates provides competitors to Employsure with ‘a significant insight into the running of [Employsure’s] business’. That information would therefore provide competitors with the ability to structure their services in direct competition to Employsure. Further, the information in the compensation decision also provides its competitors with valuable information that will enable them to compete with respect to remuneration arrangements for employees.

[10] Employsure submitted that the prevention of the publication of the compensation decision is not contrary to the principle of open justice in circumstances where it does not seek any order in respect of the unfair dismissal decision and compensation order and these will remain on the public record. To grant the order will not shield Employsure from findings made against it as these are well ventilated in the unfair dismissal decision.

[11] Employsure submitted that a determination of the application made by it requires the Commission to balance the principles of open justice against those of fairness and requires a consideration of the effect of the disclosure of the information on the parties. To this extent, for the reasons given above, it says that the disclosure of the information may have a detrimental effect on its business. The nondisclosure however will not shield Employsure from any embarrassment or discomfort as this is derived from public scrutiny of the unfair dismissal decision and the compensation order.

The legislation

[12] Section 594 of the Act states:

Confidential evidence

(1) The FWC may make an order prohibiting or restricting the publication of the following in relation to a matter before the FWC (whether or not the FWC holds a hearing in relation to the matter) if the FWC is satisfied that it is desirable to do so because of the confidential nature of any evidence, or for any other reason:

(a) evidence given to the FWC in relation to the matter;

(b) the names and addresses of persons making submissions to the FWC in relation to the matter;

(c) matters contained in documents lodged with the FWC or received in evidence by the FWC in relation to the matter;

(d) the whole or any part of its decisions or reasons in relation to the matter.

(2) Subsection (1) does not apply to the publication of a submission made to the FWC for consideration in an annual wage review (see subsection 289(2)).

Consideration

[13] The principles of open justice were most recently considered in the Commission in Bowker and Ors v DP World Melbourne Ltd & Ors 3. They have also been considered in Amie Mac v Bank of Queensland & Ors4 and Justin Corfield.5Although the two latter decisions dealt primarily with the de-identification of parties to a matter, the principle of open justice is discussed more generally.

[14] In Bowker Deputy President Gostencnik considered an application to restrict publication of certain documents which had been filed in the matter before him. The Deputy President said:

[14] Section 594 (1) of the Act vests a discretion in the Commission to make an order prohibiting or restricting the publication of certain things in relation to matters before the Commission if satisfied that it is desirable to do so because of the confidential nature of any evidence, or for any other reason.

[15] Considerations of open justice and the administration of justice are clearly relevant to the exercise of discretion to make an order under section 594 (1) of the Act. However, these considerations are not to be applied in a vacuum and need to be considered in the context of the express power to prohibit or restrict publication of certain material having regard to its confidential nature or for any other reason and the circumstances of a particular case.

[15] The Deputy President made the order sought and in doing so observed that it would not undermine the principles of open justice as it did not seek to:

shield DP World from disclosure of the allegations made against it by the applicants or from any embarrassment, discomfort or inconvenience that might arise from the public scrutiny of the allegations made. Nor does the order seek to limit disclosure or scrutiny of DP World’s workplace behaviour policy. 6

[16] The Deputy President also stated that ‘the question whether to make an order involves balancing the considerations of open justice and the interests of fairness and justice, taking into account how the order would affect each side.’ 7

[17] I am satisfied that the making of the order sought by Employsure will not protect it from any embarrassment, discomfort or inconvenience that might arise out of the application for unfair dismissal in general. The unfair dismissal decision remains on the public record. It contains criticism of how Employsure dealt with the dismissal. The final compensation order will also remain on the public record. To this extent Ms Sidney, as the other party to proceedings, is not disadvantaged by such an order as the critical elements of the decisions of the Commission in respect of her application remain on the public record.

[18] I must determine however whether the grant of the order is appropriate in all the circumstances.

[19] I am satisfied that Employsure will be subject to some inconvenience in respect of the business it has developed and the particular model it uses for that business should the reasons for the compensation decision remain on the public record given the sensitive nature of the information contained therein. This is an unfortunate bi-product of the proceedings but the reason for the initial publication of this information sits squarely at Employsure’s feet as it failed to make an application for non-publication at the time of the hearing of the compensation matter.

[20] However, the material Employsure seeks to restrict from publication does not go materially to the question that was determined in the original application made by Ms Sidney and that was whether Ms Sidney had been unfairly dismissed and, if she was, what compensation she should receive. For this reason I am satisfied that the grant of the order sought by Employsure will not offend the principals of open justice. The unfair dismissal decision and the compensation order remain on the public record.

[21] The Commission’s role is not to shield any business from competition. I am satisfied however that the grant of the order will not do this.

[22] I will therefore make a final Order prohibiting the publication of the decision with respect to compensation awarded to Ms Sidney. That Order will be issued with this decision.

COMMISSIONER

Final written submissions:

Applicant, 30 March 2016

Respondent, 21 March 2016

 1   [2015] FWC 8432.

 2   [2016] FWC 1659.

 3   [2015] FWC 4542.

 4   [2015] FWC 774.

 5   [2014] FWC 4887.

 6   [2015] FWC 4542, [18].

 7   [2015] FWC 4542, [20].

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