Michelle Narustrang v Murdoch University T/A Murdoch University

[2018] FWC 378

[2018] FWC 378 [Note: a correction has been issued to this document]

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.789FC - Application for an order to stop bullying

Michelle Narustrang
v
Murdoch University T/A Murdoch University and Ors
(AB2017/581)

DEPUTY PRESIDENT BINET PERTH, 18 JANUARY 2018

Application for an FWC order to stop bullying - application to dismiss - application to dismiss granted.

[1] On 1 November 2017, Ms Michelle Narustrang (Ms Narustrang) filed an application (Application) with the Fair Work Commission (FWC) for an order to stop bullying in accordance with section 789FC of the Fair Work Act 2009 (Cth) (FW Act).

[2] Ms Narustrang is employed by Murdoch University (Murdoch) as the Director People and Culture. Her Application alleges that several very senior employees of Murdoch had engaged in bullying behaviour towards her (Named Persons).

[3] On 4 and 8 December 2017 the parties attended conciliation conferences before me, but the issues in dispute were unable to be resolved.

[4] Given the impact of the issues raised in the Application on the parties personally, the seniority of the parties involved and the consequential impact on the effective operation of Murdoch, on 14 December 2017 the Application was listed for an expedited hearing on 15 January 2018 to 17 January 2018. Directions were issued on the same date which required Ms Narustrang to file her materials on Friday, 22 December 2017 (Directions). A further conference was held the following day in a final effort to reach a conciliated outcome. However the issues in dispute remained unresolved.

[5] On 14 December 2017 in an email sent only to Chambers, Ms Narustrang requested that the matter be adjourned on the grounds that she was scheduled to take annual leave in January. Ms Narustrang was directed to make a formal adjournment application and provide evidence in support of her application. Ms Narustrang was put on notice that she should not presume that the adjournment application would be granted and she should continue the preparation of her materials in the event that the adjournment application was declined.

[6] On 18 December 2018 Ms Narustrang was reminded that her adjournment request could not be considered without evidence in support. She was also reminded that she should continue the preparation of her materials in the event that the adjournment application, if and when it was formally made by her, was declined.

[7] On 18 December 2018 Ms Narustrang made an application for the matter to be adjourned (Adjournment Application) on the grounds that she had booked an overseas holiday departing Perth late in the evening on 27 December 2017 and returning to Perth on the morning of 24 January 2018 and her doctor was of the view that she needed a “… break for her well being …”. Ms Narustrang proposed that the matter be adjourned at least until early March 2018 by which time an independent investigation into allegations she had raised about the Named Parties would be complete and in her words “the matter may well have taken care of itself”. Ms Narustrang provided a medical certificate which certified her “…unfit to attend work or a Fair Work Commission Hearing from today until after review …”. The certificate indicated that the review was scheduled to occur on 2 February 2018 after Ms Narustrang’s return from holiday.

[8] Murdoch opposed the adjournment application submitting that it was unfair to keep the Application in abeyance for so long, noting that on 28 November 2017 Ms Narustrang had herself submitted that the objects of the FW Act required matters to be dealt with quickly without unnecessary delay and that the matter had remained unresolved for too long and that the implications of this were profound and serious.

[9] Murdoch sought instead for the Application to be dismissed given that Ms Narustrang’s originating application had sought orders with respect to the conduct of the Named Persons “whilst the investigation runs its course” and that since the investigation had now been completed such orders were otiose. Murdoch submitted that any orders against one of the Named Persons were also otiose because it was not Murdoch’s intention to retain in a temporary role which required regular contact with Ms Narustrang. Murdoch also noted that Ms Narustrang had indicated in her adjournment application that orders were unnecessary before March 2018 and that by then the “matter may well have taken care of itself”. Murdoch submit that given Ms Narustrang was due to return to work upon her return from leave this indicated that Ms Narustrang was satisfied that she could safely work with the Named Persons in the intervening period without any orders. Murdoch submitted that there was no prejudice to Ms Narustrang in the Application being dismissed because it would not prevent her making a new application for orders if the matter had not taken care of itself on her return from leave.

[10] The Named Persons opposed the adjournment application submitting that the delay was highly prejudicial to the Named Persons pointing out that the allegations against them were serious and submitting that those matters if pressed by Ms Narustrang required determination urgently. The Named Persons noted that like Ms Narustrang they and their representatives had pre-arranged leave over the festive season. Notwithstanding this for the reasons identified by Ms Narustrang in her correspondence of 28 November 2017 the matter should be determined expeditiously. The Named Persons also asserted that a failure by Ms Narustrang to file any materials in support of her Application would mean that the Application would have no reasonable prospect of success and in combination with her absence from the workplace should form grounds for the Application to be dismissed.

[11] Ms Narustrang was invited to make submissions in reply to Murdoch and the Named Persons submissions opposing the adjournment of the Application and their applications for the matter to be dismissed on or before 20 December 2017. Ms Narustrang elected to make no further submissions.

[12] After consideration of the materials filed by the parties, the matter was adjourned and relisted on 12 to 14 February 2018 on the grounds that Ms Narustrang has been certified unfit to attend a Hearing before 2 February 2018. Ms Narustrang was directed that if she was certified fit before the date of the Hearing she should advise Chambers and the hearing date would be brought forward.

[13] In light of the new hearing dates Ms Narustrang was given additional time to prepare her materials and it was noted that given advances in technology permitted communication with witnesses by video/telephone conferencing or email and that the FWC website and decision database could be searched remotely, that the tyranny of distance should not prevent Ms Narustrang complying with the filing dates. Ms Narustrang was warned that if she failed to file her materials in accordance with the revised filing dates Murdoch and the Named Persons would be invited to apply again for the Application to be dismissed.

[14] Amended directions were issued to the parties on 22 December 2018 which extended the period in which Ms Narustrang had to prepare and file her materials until 4 January 2018 (Amended Directions). The Amended Directions reminded the parties that compliance with the Amended Directions was mandatory.

[15] No further correspondence was received from Ms Narustrang and no materials were filed by Ms Narustrang by Thursday 4 January 2018. Ms Narustrang was granted a further extension until close of business, 5 January 2018 to provide materials in support of her Application.

[16] On 5 January 2017, Ms Narustrang emailed Chambers and reiterated her request for the matter to be postponed. No formal submissions or evidence in support of the Application have been received by Ms Narustrang as at the date of this decision.

[17] On 5 January 2017 and 8 January 2017, respectively, the Named Persons and Murdoch filed supplementary submissions in support of the Dismissal Applications.

[18] In addition to the grounds in which the Named Persons and Murdoch relied in their earlier application for the matter to be dismissed, it was also submitted that since two of the Named Persons had been cleared of any wrongdoing in the independent investigation and that the other Named Person was no longer in direct contact with Ms Narustang that the orders sought in the Application were in any event otiose. It was also pointed out that Ms Narustrang has had the opportunity of two extensions to file her materials and has disregarded all directions for the filing of materials. Both the submissions of the Named Persons and Murdoch continued to emphasise the impact on the Named Persons capacity to properly perform their duties and the consequential impact on the organisation of the Application remaining on foot without determination.

[19] Section 587 of the FW Act provides:

“587 Dismissing applications

(1) Without limiting when the FWC may dismiss an application, the FWC may dismiss an application if:

(a) the application is not made in accordance with this Act; or

(b) the application is frivolous or vexatious; or

(c) the application has no reasonable prospects of success.

Note: For another power of the FWC to dismiss an application for a remedy for unfair dismissal made under Division 5 of Part 3 2, see section 399A.

(2) Despite paragraphs (1)(b) and (c), the FWC must not dismiss an application under section 365 or 773 on the ground that the application:

(a) is frivolous or vexatious; or

(b) has no reasonable prospects of success.

(3) The FWC may dismiss an application:

(a) on its own initiative; or

(b) on application.”

[20] Ms Narustrang was advised on 14 December 2017 that the Application would be heard on 15 January 2018 to 17 January 2018 and that her materials would be required to be filed on or before Friday, 22 December 2017.

[21] This provided Ms Narustrang with sufficient time to prepare her materials before her departure overseas. Despite various warnings to the contrary Ms Narustrang elected not to prepare her materials prior to her departure on holiday and then sought to rely on her absence as a basis for the adjournment of the hearing of the Application. She was granted further extensions to prepare her materials but as at the date of this decision nothing in support of her Application has been filed.

[22] In her originating application, repeatedly in correspondence with Chambers and during the course of the three conferences held in relation to this matter Ms Narustrang stressed the adverse impact the failure to resolve this matter was having on her physical and mental well being as well as that of her staff and family.

[23] Both Murdoch and the Named Persons have also identified significant adverse consequences to the individuals involved in this Application and the organisation as a result of this matter remaining unresolved. Both Murdoch and the Named Persons committed to an expedited hearing despite, they and their representatives, having pre arranged leave commitments like Ms Narustrang.

[24] Ms Narustrang was not certified unfit for work until 18 December 2017 at which stage her materials ought to have been in the advanced stages of preparation. There is no medical evidence before me that she is unfit to prepare her materials or unfit to give instructions to the legal representative who was engaged on her behalf in negotiations to resolve this matter. The medical evidence is that she is unfit to attend a hearing during the period which corresponds with her overseas holiday. The hearing dates were rescheduled to reflect this medical evidence.

[25] Most importantly however the Named Parties and Murdoch have asserted that the orders sought in the Application and the grounds on which the Application was initially sought are now otiose. Ms Narustrang has provided no submissions or evidence to the contrary.

[26] Ms Narustrang has identified no prejudice to her if the Application is dismissed. If on her return to work behaviours occur which might form the basis of the granting of orders then she can make a new application at that time.

[27] On the application of Murdoch and the Named Parties I dismiss the Application pursuant to section 587 of the FW Act for the reasons set out above.

[28] Murdoch have also sought an order pursuant to section 593(3) and 594(1) of the FW Act that any materials, transcript and decision in relation to this Application be confidential and not be published other than to the parties and their representatives. In the alternative Murdoch have sought an order than any materials, transcript and decision in relation to this Application be de-identified. The Named Persons have sought an order pursuant to section 594(1) of the FW Act that any decision in relation to this Application not be published. In the alternative the Named Persons have sought an order that the parties identities not be published.

[29] On 13 January 2018 Mr Narustrang emailed Chambers and advised that Ms Narustrang opposed the applications for confidentiality orders. Mr Narustrang did not identify the grounds on which Ms Narustrang opposed the Applications, however Ms Narustrang previously provided submissions in relation to an earlier indication that an application for such orders would be made and I have taken those submissions into account in this decision.

[30] Section 593 of the FW Act deals with confidentiality of evidence in hearings. No hearing has occurred in relation to this matter as all parties have declined an opportunity to make oral submissions... However section 594 of the Act relevantly provides that:

“594 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)).”

[31] The principles to be applied in relation to applications for confidentiality orders in the FWC were considered in some detail in Amie Mac v Bank of Queensland & Or [2015] FWC 774 (Amie Mac)

[32] In Amie Mac Vice President Hatcher considered the application of the principle of open justice within the FWC and stated that:

“[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.

[9] In relation to the anti-bullying jurisdiction established by Part 6-4B of the FW Act, it is apparent that the purpose of the legislation, namely to ensure that workers can continue in their engagements at work free from the risk to health and safety caused by workplace bullying, would be defeated if the public disclosure of sensitive information during the course of anti-bullying proceedings would be likely to have the effect of rendering the relevant worker’s continuing engagement unviable. However it is equally apparent that, in accordance with the open justice principle, it is not sufficient to justify the making of a non-disclosure order merely that allegations have been made which are embarrassing, distressing or potentially damaging to reputations. In an anti-bullying matter, as with other types of proceedings before the Commission such as unfair dismissal remedy applications, the findings of the Commission concerning allegations which have been made will usually appropriately resolve concerns about embarrassment, distress or damage to reputation. If findings are made that an applicant’s allegations of bullying behaviour are unfounded, then the position of persons alleged to be the perpetrators of such bullying will be vindicated and the outcome will redound upon the applicant. However if allegations of bullying are found to be substantiated, then public identification of the perpetrators of that bullying is normally appropriate. In either case, the public scrutiny involved will have a deterrent effect that is in the public interest - in the former case against the making of unfounded allegations and in the latter case against engagement in bullying behaviour.”

[33] Unlike the situation in Amie Mac the allegations against the Named Persons are untested because Ms Narustrang has failed to file any materials in accordance with either the Directions or the Amended Directions.

[34] The Named Persons hold very senior positions within a high profile organization.  The Application raises serious allegations against these individuals.  Consequently this Application is likely to attract significant public interest beyond that of most applications of this nature.

[35] In these circumstances a departure from the principle of open justice is justified because the observance of the principle would in fact frustrate the administration of justice by unfairly damaging the material interests of the Named Persons without any evidentiary basis that the Named Persons have engaged in any inappropriate conduct of any type and without the benefit of a judgment exonerating them. 1 

[36] An order made pursuant to section 594(1) of the FW Act must be clear in its terms and do no more than is necessary to secure the due administration of justice. 2 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 the type sought by Murdoch.3

[37] Ms Narustrang opposes the application for confidentiality orders. There is no evidence before me that a departure from the principle of open justice is justified to de-identify Ms Narustrang in this decision. In fact in her earlier submissions Ms Narustrang indicated that she had nothing to hide and was confident in having the matter dealt with publically. The fact that her identity is disclosed does not automatically identify the Named Persons.

[38] Murdoch have not provided sufficient evidence to satisfy me that a departure from the principle of open justice is justified to de-identifiy the University.  This decision merely demonstrates that Murdoch have sought to have the Application resolved in an expeditious manner to minimize the adverse impact of the Application on Ms Narustrang, the Named Persons and the University.

[39] I am satisfied that the concerns validly identified by Murdoch and the Named Persons can be addressed by de-identifing the Named Persons in this decision before publication.

DEPUTY PRESIDENT

 1   Seven Network (Operations) Limited & Ors v James Warburton (No 1) [2011] NSWSC 385 at [3]

 2 bid at [3].

 3   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).

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