Miroslav Blagojevic v AGL Macquarie Pty Ltd

[2018] FWC 1513

[2018] FWC 1513

FAIR WORK COMMISSION

DECISION

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

Miroslav Blagojevic
v
AGL Macquarie Pty Ltd; Mitchell Seears
(AB2017/585)

COMMISSIONER SAUNDERS NEWCASTLE, 14 MARCH 2018

Application for de-identification of parties in an application for an order to stop bullying – application dismissed.

[1] Mr Blagojevic has made an application under s.789FC of the Fair Work Act 2009 (Cth) (Act) for orders to prevent him from being bullied at work. Following an unsuccessful mediation, Mr Blagojevic's application has been listed for hearing in the Fair Work Commission (Commission) on 9 and 10 April 2018.

[2] In correspondence to the Commission dated 9 January 2018, Mr Blagojevic made an application for the de-identification of his name and "identifying details". Mr Blagojevic subsequently filed submissions on 3 March 2018 in support of his application for de identification orders. Those submissions were filed pursuant to directions issued by the Commission on 16 February 2018.

[3] On 8 March 2018, submissions were filed on behalf of Mr Blagojevic's employer, AGL Macquarie Pty Ltd, and the person named in the proceedings, Mr Seears (collectively, the Respondents), in relation to Mr Blagojevic's application for de-identification orders.

Relevant principles

[4] I adopt the following summary of the relevant principles from Vice President Hatcher's decision in Mac v Bank of Queensland Limited: 1

"The de-identification application

[5] It is convenient to deal with the de-identification application first. There was no issue that the Commission has power under s.593(3) to order the de-identification of the names of the individuals involved in this matter. The question in dispute was whether the circumstances of the case justified the making of such an order.

[6] The principle of open justice will usually be the paramount consideration in determining whether a confidentiality order of the type sought by the respondents ought be made. The main features of that principle were usefully summarised in the NSW Supreme Court decision (Pembroke J) in Seven Network (Operations) Limited & Ors v James Warburton (No 1) 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.”

[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.

[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 rebound 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.

[10] If a party applies for confidentiality orders on the basis that disclosure of sensitive information is likely to endanger the viability of a continuing working engagement, then that party will need to positively satisfy the Commission that this is the case. It is not sufficient for this simply to be asserted. In this case, the respondents have submitted that de-identification was appropriate because it would:

(1) minimise the negative impact that any open proceedings may have on Ms

Mac, particularly in relation to her ability to return to work;

(2) minimise the negative impact that any open proceedings may have on the health of Ms Mac;

(3) minimise the adverse impact on the individual respondents of untested allegations, including allegations to the effect that they (being lawyers) have breached the Australian Solicitors' Conduct Rules; and

(4) minimise unnecessary knowledge of the proceedings amongst BOQ employees, thereby minimising the potential to adversely affect any return to work by Ms Mac.”

Submissions

Mr Blagojevic's submissions

[5] Mr Blagojevic submits that making details concerning his identity available to the public, particularly publishing such details on the internet in a decision, would have the following effects:

(a) First, it would increase the likelihood that some other managers at Mr Blagojevic's place of work would start seeing him in a negative light, which would create an unfriendly environment in which he would have to work. Mr Blagojevic also contends that making details of his application to the Commission publicly available would likely result in his colleagues and others with whom he works on a daily basis looking at him differently, thereby affecting his ability to maintain friendly and effective work relationships;

(b) Secondly, Mr Blagojevic contends that he would never again be able to find any other job in Australia, because recruitment companies regularly use search engines to check a candidate's background and a new prospective employer would not employ Mr Blagojevic if they found out that he had made a bullying complaint to the Commission about his previous manager; and

(c) Thirdly, the fact that Mr Blagojevic would not have other alternative employment options available to him would put him in in an even more vulnerable position once he returns to work with his current employer. Mr Blagojevic contends that this would enable some employees and/or managers of his current employer to "use subtle but effective methods” to make his life “miserable”, and it would not help him to “maintain safe and productive employment”.

[6] Mr Blagojevic also submits that, without a de-identification order, he would be in a situation where he would be required to choose between:

•  continuing with his current application before the Commission for orders to stop bullying and “fight for justice” and his “safe return to work”, if and when his health “sufficiently improves”. As to his return to work, Mr Blagojevic contends that it would have a lesser chance of success without a de-identification order and if he did resign then he would most likely never be able to find another job in Australia; or

•  withdraw his current application before the Commission for orders to stop bullying, resign from work and look for other jobs, if and when his health improves.

[7] Mr Blagojevic further contends that some of the reasons why the principle of open justice is important, as explained by Vice President Hatcher in Mac v Bank of Queensland, are not applicable in this case. In particular, Mr Blagojevic refers to the principle that “public scrutiny operates as a disincentive to false allegations and is a powerful incentive to honest evidence.” In this case, Mr Blagojevic says that “the allegations were already made” and his employer in prior correspondence to the Commission “does not suggest that Mr Blagojevic's complaint against Mr Seears is disingenuous.”

Respondents’ submissions

[8] The Respondents do not oppose the application for de-identification orders, provided that if the Commission grants the application, the Commission also makes an order in the same terms in relation to the person named in the application and any other individuals named in the proceedings. The Respondents contend that such an order would be necessary to avoid identifying Mr Blagojevic.

[9] The Respondents refer to the fact that Mr Blagojevic has been provisionally diagnosed with mental ill health and has not returned to the work place for some time. It follows, so the Respondents contend, that these proceedings involve information that is sensitive in nature, and the potential effect of a publicly available decision on the welfare and state of mind of the individuals involved should be considered.

[10] The Respondents also submit that this is not a matter that turns on the identity of the parties or the individual witnesses, and in such circumstances the principle of open justice is compatible with the relevant individuals being de-identified in any public decision issued by the Commission.

Consideration

[11] As is the case with many applications to the Commission for orders to stop bullying, the determination of the various factual and legal questions in issue in these proceedings may well be embarrassing, distressing or potentially damaging to the reputations of the individuals involved. In accordance with the open justice principle, that there is such a risk or likelihood is not sufficient to justify the making of a de-identification order.

[12] I am not satisfied that the disclosure of the identity of Mr Blagojevic or any of the other individuals involved in these proceedings is likely to endanger the viability of a continuing working relationship between Mr Blagojevic and his employer or work colleagues. Mr Blagojevic has already been absent from the workplace for some time. If Mr Blagojevic succeeds in his current application before the Commission, he is likely to return to the workplace and will have the protection afforded to him by both the orders made in his favour and the obligation not to take adverse action against him because he has exercised his workplace right to make an application for anti-bullying orders. If, on the other hand, Mr Blagojevic is not successful in his current application for the Commission, he will need to make a decision as to whether he wishes to return to the workplace. If he does so, he will have protection against any adverse action taken against him because he has exercised his workplace right to make an application for anti-bullying orders, even though such application was not successful.

[13] I do not accept Mr Blagojevic's bare assertion that his work colleagues or managers would start seeing him in a negative light or otherwise look at or treat him differently by reason of the fact that he made an application (in the terms that he has) to the Commission for anti-bullying orders. Nor do I accept Mr Blagojevic's bare assertion that it could be tempting for some of his employer's offices or managers to use subtle but effective methods to make his life miserable, if they found out about his application these proceedings.

[14] Further, I do not accept Mr Blagojevic's contention that he would never again be able to find another job in Australia if the de-identification orders sought by him were not made. Much will depend on the findings I make on the contested factual and legal issues in the proceedings. Mr Blagojevic's position in this regard is similar to that of many applicants in the thousands of unfair dismissal and anti-bullying applications filed in the Commission every year.

[15] There are no allegations in this case to the effect that Mr Blagojevic's complaint against Mr Seears is disingenuous. That is, the Respondents accept that Mr Blagojevic believes he has been bullied at work, principally by reason of the decision to place Mr Blagojevic on a performance improvement plan. However, the Respondents contend that Mr Blagojevic has not been bullied at work, and the decision to place him on a performance improvement plan was reasonable management action carried out in a reasonable manner. The outcome of the contested issues in this case will only be able to be determined after a hearing is conducted before the Commission.

[16] I accept that Mr Blagojevic will have to make a decision as to whether to continue with his current proceedings before the Commission and “fight for justice” and his “safe return to the work[place]” or discontinue his proceedings and potentially resign from work and look for other employment, if and when his health improves. This is a choice many litigants have to face in the Commission and other courts and tribunals.

[17] I am not satisfied that the disclosure of the names of the individuals involved in this matter would seriously endanger the ability of Mr Blagojevic, who is currently off work for stress related reasons, to ever return to his employment with his employer. There is nothing in the material filed in the Commission in these proceedings which could form a proper basis for the conclusion that the de-identification of the names of the relevant individuals in this matter would be likely to prevent Mr Blagojevic from returning to work at an appropriate time. Mr Blagojevic's willingness to return to work in the future is likely to be influenced to a significant degree by the extent, if any, to which he succeeds in his present application before the Commission.

Conclusion

[18] For the reasons set out above, and having regard to the submissions made by the parties, I am not satisfied that making the de-identification orders sought by Mr Blagojevic is necessary to secure the proper administration of justice. Accordingly, the application for de identification orders is dismissed.

[19] Mr Blagojevic has indicated that he may decide to withdraw his application for orders to stop bullying if he does not succeed in obtaining de-identification orders. Having regard to the circumstances of this case and the matters raised by the parties in their submissions, I am satisfied that it is desirable and in the interests of justice to allow Mr Blagojevic some time to consider his options in that regard without this decision being published on the Commission's website or elsewhere. Accordingly, I make the following directions and orders:

1. Mr Blagojevic is to inform the Associate to Commissioner Saunders, in writing, by 4pm on 27 March 2018 whether he wishes to (a) continue with his application for orders to stop bullying or (b) withdraw his application for orders to stop bullying.

2. Pursuant to s.594(1)(d) of the Act and subject to (3) and (4) below, I order that Mr Blagojevic, AGL Macquarie Pty Ltd and Mr Seears be prohibited from publishing the whole or any part of this decision.

3. In the event that Mr Blagojevic notifies the Commission by 4pm on 27 March 2018 that he wishes to withdraw his application for orders to stop bullying, his application will be discontinued with immediate effect, 2 the non-publication order set out in (2) above will continue to operate on a permanent basis, and this decision will not be published on the website of the Commission.3

4. In the event that Mr Blagojevic either:

(a) notifies the Commission by 4pm on 27 March 2018 that he wishes to continue with his application for orders to stop bullying; or

(b) fails to notify the Commission by 4pm on 27 March 2018 of his wish to continue his application or withdraw it,

then Mr Blagojevic's application will proceed to hearing before the Commission on 9 and 10 April 2018 and the non-publication order referred to in (2) above will cease to operate, with the result that a copy of this decision will be published on the website of the Commission, the hearing before the Commission on 9 and 10 April 2018 will be held in public, and a copy of the final decision on the merits of Mr Blagojevic's application for orders to stop bullying will be published on the website of the Commission in due course.

COMMISSIONER

<PR601152>

 1   [2015] FWC 774

 2   Rule 10(2)(b)(iii) of the Fair Work Commission Rules 2013

 3 s. 601(5)(g) of the Act

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