Linda Rigby v BMS Retail Group Pty Ltd

[2017] FWC 5001

[2017] FWC 5001

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Linda Rigby
v
BMS Retail Group Pty Ltd
(U2016/3521)

DEPUTY PRESIDENT HAMILTON MELBOURNE, 10 OCTOBER 2017

Application for relief from unfair dismissal - release of transcript and order.

[1] On 4 January 2016, Ms Linda Rigby (Applicant) lodged an application for unfair dismissal pursuant to s.394 of the Fair Work Act 2009 (the Act). On 10 May 2016, I heard the matter by way of private conference 1. I delivered my decision in transcript2 and issued an accompanying order3 dismissing her application for an unfair dismissal remedy.

[2] On 2 June 2016, Ms Rigby filed a Notice of Appeal against my decision and order dismissing her unfair dismissal application. The appeal was dismissed on 28 July 2016 4.

[3] On 24 May 2016, BMS Retail Group Pty Ltd (Respondent) lodged an application for costs against the Applicant. I issued my decision 5 regarding the costs application on 27 October 2016. A hearing of the costs application was adjourned after Ms Rigby advised the Commission at the hearing that she would shortly lodge an appeal.

[4] On 24 May 2016, the representative for the Respondent, Logie-Smith Lanyon, also wrote to the Fair Work Commission (the Commission) seeking clarification on whether the transcript of the private conference and the order I issued could be disclosed to third parties. Consideration of this issue was also adjourned pending consideration of the appeal.

[5] On 26 May 2016, the representative for the Applicant, A Whole New Approach Pty Ltd, wrote to the Commission stating that: “We do not wish for the outcome of the proceedings and/or transcript to be disclosed”.

[6] Logie-Smith Lanyon wrote a further two letters, on 10 August 2017 and 17 August 2017 respectively, seeking clarification on the confidentiality of the transcript and the order.

[7] The appeal has now been finalised, and it is appropriate for me to deal with the issue of publishing my decision dismissing the unfair dismissal remedy application. I have taken account of all the submissions put.

Submissions

The Applicant’s representative wrote to the Commission on 26 May 2016 opposing the disclosure of the transcript and the order. In the letter, the Applicant’s representative stated:

“We do not wish for the outcome of the proceedings and/or transcript to be disclosed as these are not relevant to Worker’s Compensations claims but rather are limited to Unfair Dismissal Proceedings which have now been dismissed per the Order issued by his honour, Deputy [President] Hamilton.

…

To uphold the purposes and objective of the Fair Work Act 2009 in Section 3(e), the object of the Act is to enable fairness and representation at work and to provide accessible and effective procedures to resolve grievances and disputes and providing effective compliance mechanisms. The private conference has allowed this to be achieved.

As per Section 397 to 399 of the Fair Work Act 2009 (Cth) and the Unfair Dismissals practice note which was recited by Logie Smith Lanyon, the conference is conducted in private and persons other than their parties are unable to attend. Therefore, any other party who is not relevant to the proceedings would not be granted access to the information to private conferences, hence the meaning of the word private.”

On 10 August 2016, the Respondent’s representative wrote to the Commission outlining the Respondent’s three main objections to the letter. The letter stated:

“(a) AWNA’s Letter states that the Order and Transcript “are not relevant to Worker’s Compensation claims but rather are limited to Unfair Dismissal Proceedings”. Our client submits that there is no basis for this statement. Ms Rigby’s alleged injury was, according to Ms Rigby, caused by alleged bullying by her colleague Ms Maher. His Honour found that Ms Rigby had not been honest in the course of the complaints process in the workplace. Our client submits that His Honour’s findings are directly relevant to Ms Rigby’s worker’s compensation claim. Further, it is both appropriate and necessary for our client to disclose this to its insurer, having regard to the insurer’s rights of subrogation.

(b) AWNA’s Letter further states that the “object of the Act is to enable fairness and representation at work and to provide accessible and effective procedures to resolve grievances and disputes... the private conference has allowed this to be achieved”. The relevance of this assertion is not clear to our client. The objects in section 3 of the Fair Work Act 2009 (Cth) (FW Act) do not require that information or evidence produced in the course of an unfair dismissal proceeding [to] remain confidential. In fact, our client submits that such disclosure would further the objects of the FW Act, namely, achieving fairness (noting His Honour’s findings regarding Ms Rigby’s dishonesty).

(c) Finally, AWNA’s Letter states that the “conference is conducted in private and persons other than their parties are unable to attend. Therefore, any other party who is not relevant to the proceedings would not be granted access to the information”. This is plainly incorrect. Persons other than parties are able to attend private conferences, including for the purposes of giving evidence. For example, Mr Misha Wright-Rodionov of the worker’s compensation organisation “Rework” was present in the conference of 10 May 2016 for the purpose of giving evidence.”

In an email to the Commission dated 10 September 2017, the Applicant further submitted:

“I Linda Rigby do not wish for the outcome of the proceedings and or transcript to [be] disclosed. I was of the understanding that this matter was to proceed as a private conference and all parties agreed for this matter to be private and confidential. I Linda Rigby STRONGLY OBJECT to this mater being made public or forward[ed] to third parties and [I] also believe that if it was made public or passed on to a third party it would be in breach of my privacy and confidentiality. His Honour also stated that this matter was to proceed as a private conference.”

Consideration

[8] The powers of the Commission to conduct conferences and hearings for unfair dismissal matters are contained in s.397, s.398 and s.399 of the Act.

[9] Section 397 of the Act states as follows:

“Matters involving contested facts

The FWC must conduct a conference or hold a hearing in relation to a matter arising under this Part if, and to the extent that, the matter involves facts the existence of which is in dispute.”

[10] Section 398 of the Act states as follows:

“Conferences

(1) This section applies in relation to a matter arising under this Part if the FWC conducts a conference in relation to the matter.

(2) Despite subsection 592(3), the FWC must conduct the conference in private.

(3) The FWC must take into account any difference in the circumstances of the parties to the matter in:

(a)  considering the application; and

(b)  informing itself in relation to the application.

(4)  The FWC must take into account the wishes of the parties to the matter as to the way in which the FWC:

(a)  considers the application; and

(b)  informs itself in relation to the application.

[11] Section 399 of the Act states as follows:

“Hearings

(1)  The FWC must not hold a hearing in relation to a matter arising under this Part unless the FWC considers it appropriate to do so, taking into account:

(a)  the views of the parties to the matter; and

(b)  whether a hearing would be the most effective and efficient way to resolve the matter.

(2)  If the FWC holds a hearing in relation to a matter arising under this Part, it may decide not to hold the hearing in relation to parts of the matter.

(3)  The FWC may decide at any time (including before, during or after conducting a conference in relation to a matter) to hold a hearing in relation to the matter.

[12] I note that paragraph 45 of the Unfair Dismissal Proceedings Practice Notes provides:

“A conference is conducted in private, which means that persons other than the parties, their representatives, if any, and their witnesses are not able to attend the conference. However the decision of the Member, including the names of the parties, is published on the Commission’s website (unless the Commission decides otherwise.)”

[13] Page 153 of the Unfair Dismissals Benchbook states:

“While determinative conferences are held in private, the Commission will still publish its reasons for decision, including the names of the parties, on the Commission’s website (unless the Commission decides otherwise).

[14] I also note the provisions of the Act relating to decisions, including s.601, which requires decisions to be reduced to writing.

[15] The Full Bench considered the principle of open justice in the decision of United Firefighters’ Union of Australia v Metropolitan Fire and Emergency Services Board 6. The Full Bench noted:

“[33] Moreover, in Seven Network (Operations) Limited & Ors v James Warburton (No 1) (hereafter Seven Network),Pembroke J provided an in depth analysis of the principles of open justice as follows:

“[2] The reason for the principle of open justice is that, if the proceedings of courts of justice are fully exposed to public and professional scrutiny and criticism, and interested observers are able to follow and comprehend the evidence, the submissions and the reasons for judgment, then the public administration of justice will be enhanced and confidence in the integrity and independence of the courts will be maintained: Russell v Russell ; Farrelly v Farelly (1976) 134 CLR 495 at 520 (Gibbs J). Not only does the conduct of proceedings publicly and in open view assist in removing doubts and misapprehensions about the operation of the system, but it also limits the opportunity for abuse and injustice by those involved in the process, by making them publicly accountable. Equally, public scrutiny operates as a disincentive to false allegations and as a powerful incentive to honest evidence: J v L& A Services Pty Ltd (No 2) [1995] 2 Qd R 10 at 45 (Fitzgerald P and Lee J). For all those reasons, the principle of open justice is not only an indispensable feature of our system, but it is also a healthy feature.

[3] There are limited exceptions to the principle of open justice. Where those exceptions apply, the courts will restrict access where appropriate. But departure from the principle of open justice is only justified where observance of the principle would in fact frustrate the administration of justice by unfairly damaging some material private or public interest. To that end, an order restricting the public availability of information will only be made if it is really necessary to secure the proper administration of justice. Such an order must be clear in its terms and do no more than is necessary to achieve the due administration of justice. Furthermore, there must be some material before the Court upon which it can reasonably reach the conclusion that it is actually necessary to make an order of that type: John Fairfax & Sons Ltd v Police Tribunal of New South Wales (1986) 5 NSWLR 465 at 476-7 (McHugh JA); Caroona Coal Action Group Inc v Coal Mines Australia Pty Ltd (No 4) [2010] NSWLEC 91 (Preston CJ); Idoport Pty Ltd v National Australia Bank [2001] NSWSC 1024 (Einstein J).

[4] The consequence of the principle of open justice is that embarrassing, damaging and inconvenient facts may occasionally come to light. That consideration has never been regarded as a reason in itself for the suppression of evidence or for an order restricting access to documents: John Fairfax Group Pty Ltd (Receivers& Managers Appointed) v Local Court of New South Wales & Ors (1991) 26 NSWLR 131 at 142 (Kirby P). Equally, it is common for sensitive issues to be litigated and for information that is extremely personal or confidential to be disclosed. This is sometimes an unavoidable by-product, and a necessary consequence, of the application of the principle.

[5] To avoid the consequences that sometimes follow from the conduct of proceedings publicly and in open view, parties can, and frequently do, choose to litigate their disputes by private commercial arbitration. But if they choose to litigate in court, they must accept the necessity for the Court to conduct its proceedings openly and with transparency.”

[34] The principles of open justice elicited above are applicable to the proceedings before the Commission. Importantly, we note that the departure from the principles of open justice is only justified where observance of the principle would frustrate the administration of justice by unfairly damaging some material private or public interest. Thus, it is incumbent upon us to make such an observation in order to issue an ongoing confidentiality order for the purposes of the matter before us.

[35] Moreover, the Commission is not strictly bound by the doctrine of stare decisis. However, it generally observes the doctrine as outlined in Cetin v Ripon Pty Lt t/as Parkview Hotel:

“Although the Commission is not, as a non-judicial body, bound by principles of stare decisis, as a matter of policy and sound administration it has generally followed previous Full Bench decisions relating to the issue to be determined, in the absence of cogent reasons for not doing so.”” [Footnotes omitted]

[16] Although the Full Bench’s consideration was in relation to a confidentiality order, these observations are relevant to publication of a decision. The issue of open justice was also considered in Amie Mac v Bank of Queensland Limited; Michelle Locke; Matthew Thompson; Stacey Hester; Christine Van Den Heuvel; Jane Newman 7, and the same conclusions were reached. The decision of Pembroke J was referred to, and it was said:

“[7] The above passage describes the open justice principle in relation to courts, but I consider that the passage is equally applicable to a tribunal such as this Commission which conducts its processes in a quasi-judicial fashion.

[8] As identified in the passage quoted, departures from the principle of open justice may be permitted where not to do so would defeat the proper administration of justice. For example, in criminal proceedings involving an allegation of blackmail, identifying details of the target of the alleged blackmail will often be suppressed in order that the system of justice does not serve to aid the blackmailer. Genuine trade secrets and commercially confidential information may be the subject of orders restricting publication and disclosure where their exposure in the course of litigation may result in a litigant suffering the injustice of detriment at the hands of a competitor.”

Conclusion

[17] I have taken the submissions of the applicant into account. In relation to workers’ compensation, I have no view on whether or not the decision I issued is relevant to other proceedings. That can be the subject of submissions during those other proceedings. In relation to the object of the Act, as has been made clear in the authorities quoted above accessible and efficient procedures to resolve disputes and grievances need not be private and confidential, and in fact open justice is an important consideration. Thirdly, information published in relation to determinative conferences make it clear that decisions which result from them can or will be published.

[18] In this case on the material before me I do not consider that observance of the principle of open justice would frustrate the administration of justice by unfairly damaging some material private or public interest. In fact the substance of the original unfair dismissal decision rejecting the applicant’s claim has already been publicly disclosed in the appeal decision, and in the costs decision. In the costs decision, for example, a number of examples of inconsistencies in the applicant’s evidence are discussed in some detail. There is little practical utility in maintaining confidentiality in those circumstances.

[19] I direct that the transcript is publicly available.

[20] I add the observation that the parties appear to be unwilling to compromise in any respect, and appear to prefer to pursue litigation rather than settling issues. I respectfully encourage the parties to make real attempts to settle any further issues between them. If they wish the assistance of a member of the Commission to settle remaining issues between them this can be arranged by contacting Clancy DP’s chambers.

DEPUTY PRESIDENT

 1   Transcript, PN788

 2   Transcript (10 May 2016), PN919-937.

 3   PR580211.

 4   [2016] FWCFB 5094.

 5   [2016] FWC 6846.

 6   [2017] FWCFB 2500.

 7   [2015] FWC 774.

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