Jason Jamieson and Asciano Services Pty Ltd

[2014] AATA 973

[2014] AATA 973

Division	GENERAL ADMINISTRATIVE DIVISION
File Number	2014/4584
Re	Jason Jamieson
APPLICANT
And	Asciano Services Pty Ltd
RESPONDENT

DECISION

Tribunal	G. D. Friedman, Senior Member
Date	18 December 2014
Date of written reasons	30 January 2015
Place	Canberra

The Tribunal ORDERS, pursuant to section 35(2)(c) of the Administrative Appeals Tribunal Act 1975, that the disclosure to the applicant of the contents of the following documents lodged with the Tribunal by the respondent relating to the initiation of an investigation be prohibited:

1. The attachment to the email of Joanne McLoughlin dated 1 March 2014, entitled “Bullying Notes – Records of Mudgee Bullying and Harassment Conversations”;
2. Meeting File Note dated 6 March 2014; and
3. Two photographs of a “Christmas Gift” (referred to in the text of document 1 above).

..........................[Sgd].......................................

G. D. Friedman, Senior Member

CATCHWORDS

PRACTICE AND PROCEDURE – confidentiality order application – whether grounds for order – whether contents of documents relevant to substantive application

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth) ss 35(1), 35(2)(c)

REASONS FOR DECISION

G. D. Friedman, Senior Member

30 January 2015

1. Mr Jamieson was, at the relevant time, an employee of Asciano Services Pty Ltd (Asciano). On 27 March 2014 Mr Jamieson lodged a claim for workers compensation in relation to reactive depression suffered as a result of an investigation by Asciano into allegations of misconduct by Mr Jamieson and others.

2. On 12 November 2014 the Tribunal issued a direction that:

   …

   2. On or before 26 November 2014, [Asciano] must give to the Tribunal and [Mr Jamieson] the documents on the basis of which [Asciano] decided to initiate the investigation.

   …

3. On 26 November 2014 Asciano applied for a direction that several documents which fell within the ambit of the direction of 12 November 2014 not be disclosed to Mr Jamieson or any other parties. The documents included correspondence and file notes. The direction was sought on the grounds that:

   a.Mr Jamieson is self-represented;

   b.The documents were produced following confidential discussions with various other employees and other persons related to Asciano and named in the documents, prior to the decision to investigate the allegations against Mr Jamieson;

   c.Disclosure of the documents to the applicant would be likely to:

   i.Affect Mr Jamieson adversely;

   ii.Affect relations and relationships between the Mr Jamieson and persons named in the documents;

   iii.Lead to a deterioration in relationships between Mr Jamieson and others in the workplace;

   iv.Breach the confidentiality of the persons named in the documents who participated in the discussions in (b) above;

   v.Make it less likely that employees will cooperate with the respondent’s management team in future investigations

4. On 27 November 2014 the Tribunal granted the request for a ‘confidentiality order’ pursuant to s 35(2)(c) of the Administrative Appeals Tribunal Act 1975. This order was amended on 8 December 2014 to include an additional document (photographs) in relation to which Asciano sought a confidentiality order.

5. Mr Jamieson objected to this order on 1 December 2014 on the basis that the documents were relevant to his claim for workers compensation because Asciano relied upon them in taking actions which form the basis of Mr Jamieson’s claim for workers compensation.

   Legislation

6. The relevant legislation regarding confidentiality orders is contained in s 35 of the Administrative Appeals Tribunal Act 1975. Section 35(1) provides that, subject to s 35, hearings shall be in public. Subsection 35(2)(c) provides that:

   (2)  Where the Tribunal is satisfied that it is desirable to do so by reason of the confidential nature of any evidence or matter or for any other reason, the Tribunal may, by order:

   …

   (c)  give directions prohibiting or restricting the disclosure to some or all of the parties to a proceeding of evidence given before the Tribunal, or of the contents of a document lodged with the Tribunal or received in evidence by the Tribunal, in relation to the proceeding.

   Consideration

7. I have considered the submissions of both parties as described above. I have concluded that:

   ·The emails of Joanne Rees and Belinda Greeley dated 28 February 2014 are general in nature and should be made available to the applicant.

   ·The email of Joanne McLoughlin dated 1 March 2014 is in the form of a covering letter and should be released but the attachment "Bullying notes - Records of Mudgee Bullying and Harrassment Conversations" does not concern the applicant and should not be released.

   ·The meeting file note dated 6 March 2014 concerns a conversation between two persons not concerned with the applicant's claim (the single reference to the applicant is not relevant) and should not be released.

   ·The photographs are not relevant and should not be released.

   Order

8. The Tribunal ORDERS, pursuant to section 35(2)(c) of the Administrative Appeals Tribunal Act 1975, that the disclosure to the applicant of the contents of the following documents lodged with the Tribunal by the respondent relating to the initiation of an investigation be prohibited:

   1. The attachment to the email of Joanne McLoughlin dated 1 March 2014, entitled “Bullying Notes – Records of Mudgee Bullying and Harassment Conversations”;
   2. Meeting File Note dated 6 March 2014; and
   3. Two photographs of a “Christmas Gift” (referred to in the text of document 1 above).

I certify that the preceding 9 (nine) paragraphs are a true copy of the reasons for the decision of G. D. Friedman, Senior Member

..........................[Sgd]......................................

Associate

Dated 30 January 2015

Date of hearing	18 December 2014
Applicant	In person
Advocate for the Respondent	Paul Mentor
Solicitors for the Respondent	Clarke Legal