Michael Williams v Rail Commissioner
[2017] FWC 4632
•6 SEPTEMBER 2017
| [2017] FWC 4632 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Michael Williams
v
Rail Commissioner
(U2017/2503)
| Commissioner Platt | ADELAIDE, 6 SEPTEMBER 2017 |
Application for confidential evidence – application granted in part.
On 7 March 2017, Mr Michael Williams lodged an application pursuant to s.394 of the Fair Work Act 2009 (the Act) in relation to the termination of his employment with the Rail Commissioner which his form F2 Unfair Dismissal Application advised took effect on 13 February 2017.
On 20 June 2017, a Decision[1] was issued granting Mr Williams an extension of time to file and the matter was listed for Directions Conference in relation to the merits.
Directions were issued on 4 July 2017 and the matter is listed for hearing.
On 4 August 2017, Mr Williams sought that the hearing be conducted in private pursuant to s.593(3) of the Act. On 7 August 2017 at 9:12am, Mr Williams withdrew the application. On 7 August 2017 at 5:01pm, the Rail Commissioner sought an order that:
· the hearing be conducted in private;
· prohibits the publication of evidence given at the hearing in so far as the evidence names or identifies persons who are not party or a witness in the proceedings; and
· prohibits the publication of matters contained in documents before the Commission in so far as that evidence names or identifies persons who are not party or a witness in the proceedings.
A Directions Conference was held on 8 August 2017 and on the same day Amended Directions were issued for the parties to provide written submissions in respect of their position. A written submission was received from the Rail Commissioner and Mr Williams.
The Rail Commissioner seeks that the Commission use its powers under s.593(3)(a),(d)(i)-(ii), and s.594(1)(a),(c) or (d) of the Act.
In support of its position, the Rail Commissioner submitted that the evidence which will be submitted identifies persons who are not a party or a witness in the proceeding who were identified as potentially implicated in misconduct or a similar nature alleged against Mr Williams.
The Rail Commissioner accepts that it is necessary to provide Mr Williams with information that will be presented against him in order to allow him to properly present his case. The information contains names of persons who are not a party or a witness in the proceeding and such information is presently confidential to the Rail Commissioner and the named persons and it would be unfair to disclose the identities of these persons either on the public record or in a published decision.
The Rail Commissioner also submitted that granting of the order sought would be consistent with the exceptions to the principle of ‘open justice’ as described in the decision in Unified Firefighters’ Union of Australia v Metropolitan Fire and Emergency Services Board.[2] It was also submitted that the decision in Application by Bowker[3] supported the taking of steps to protect the identity of persons who are not parties or witnesses in a proceeding.
Mr Williams’ submission opposes the application and submits the principles of open justice detailed in the decision of Seven Network (Operations) Ltd & Ors v James Warburton (No1)[4] requires that an order restricting the public availability of information will only be made if it is really necessary to secure the proper administration of justice. Mr Williams contends that the default position is that the hearing should be held in the open, and that mere embarrassment is insufficient to deviate from that principle.
I have reviewed the material submitted by both parties in respect of this application, and their submissions in respect to the substantive application.
There is no suggestion that the persons named risk retribution, harassment or intimidation. Accordingly, I see no reason to close the hearing from the public and reject that portion of the application.
With respect to the publication of the names or material which would tend to identify persons who are not a party or a witness, the decision in Application by Bowker is instructive and extracted below:
“[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.
[16] We are not here concerned with an application to restrict the publication of the identity of any party to those proceedings, or to avoid bringing about some embarrassment to such party. Rather, this application is concerned with protecting the identity of employees who are not parties to this proceeding and are not presently proposed to be witnesses in the proceedings, who have given information to DP World on a confidential basis pursuant to its workplace behaviour policy that assures confidentiality to such employees, as well as the information given by those employees to DP World during its investigations.
[17] The applicants do not dispute that the information to which the order is sought relates was provided to DP World by various employees on the basis that would maintain confidential. It is also not disputed that DP World’s workplace behaviour policy assures confidentiality so far as is practicable in the complaints and investigation process and that complaints about unacceptable workplace behaviour will be treated confidentially. In the circumstances I am satisfied that the information in the documents is of a confidential nature.
[18] In my view, making an order of the kind of sought by DP World does not undermine the principle of open justice. As I have already indicated, the order sought is not directed to preventing the publication of the identity of the party to these proceedings or any witness to the proceedings. The order sought does 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.
[19] Given that certain employees provided information to DP World pursuant to an assurance of confidentiality, I accept that there is a real risk of undermining the confidence that those employees have in the workplace behaviour policy if the employees’ identities, or the information that they provided to DP World during the investigation is disclosed, particularly in the workplace. Moreover, given the allegations made by the applicants in this proceeding relate to conduct to which they have been subjected by some DP World employees because of complaints they have made or information thought to have been provided to DP World, the applicants should recognise that there is a risk that similar conduct about which they comply, might be directed at the employees whose identity DP World seeks to protect. I do not accept that the culture of silence will be perpetuated if an order is made. The employees for whom protection is sought have already provided information to DP World. A diminution of confidence in the integrity of the investigation process under DP World’s workplace behaviour policy is more likely to have that effect. An order of the kind sought will minimise that risk.
[20] Ultimately, 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. It is also appropriate to take into account the interests of persons who are not parties to this proceeding, but who have given information to DP World under an assurance of confidentiality. I am satisfied that an appropriate balance is struck by the making an order of the kind proposed. I do not accept that an order of the kind sought is contrary to the proper administration of justice because it will give DP World a forensic advantage or inhibit the capacity of the applicants to properly prepare and conduct their cases. Each of the applicants will have access to relevant material as it affects their respective case. It is not the point that their cases are being heard together or that the applicants support one another. Their legal advisers will have access to all of the material, and any difficulties that arise may be brought to my attention with notice to DP World, for resolution.”
I accept the principles applied in Application by Bowker and apply them to this case.
I accept that some of the material is confidential and could adversely impact on the reputation of persons who are not parties to the proceeding. I am satisfied, having regard to the nature of the material, that it is appropriate to make an Order restricting publication of the material submitted as a result of my Directions and in the conferences and hearings in the substantive matter.
My Order is intended to appropriately protect the identities of non-parties and non-witnesses to this proceeding and the confidential information held concerning the non-parties and non-witnesses by the Rail Commissioner.
An Order[5] reflecting this decision will be issued.
COMMISSIONER
[1] [2017] FWC 3306
[2] [2017] FWCFB 2500
[3] [2015] FWC 4542
[4] [2011] NSWSC 385
[5] PR595876
Printed by authority of the Commonwealth Government Printer
<Price code A, PR595875>
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