Mona Krombholz v The Commonwealth of Australia T/A Department of Defence

[2015] FWC 3040

[2015] FWC 3040

FAIR WORK COMMISSION

DECISION

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

Mona Krombholz
v
The Commonwealth of Australia T/A Department of Defence; Liz Weeks; Michael Howell; Bev Tyler; Mathew Cachia
(AB2015/33)

DEPUTY PRESIDENT KOVACIC MELBOURNE, 4 MAY 2015

Application for an FWC order to stop bullying.

[1] This decision concerns applications by the parties in this matter for the suppression of the identities of both the Applicant (Ms Krombholz) and Respondents (The Commonwealth of Australia T/A the Department of Defence, Ms Liz Weeks, Mr Michael Howell, Ms Bev Tyler and Mr Mathew Cachia) and an application by the Respondents for permission to be legally represented in the matter in accordance with s.596 of the Fair Work Act 2009 (the Act).

[2] By way of background, the matter concerns an application made on 18 February 2015 under s.789FC of the Act for an order to stop bullying. The application has been the subject of a number of conferences convened by the Fair Work Commission (the Commission) in an effort to resolve the matter. Those conferences were unsuccessful and the matter has been listed for substantive hearing.

The de-identification applications

[3] The Respondents have made an application to the Commission seeking that an order be made to prohibit or restrict the publication of the name and addresses of the Respondents in this matter. The Respondents consider that proceeding with the application where the names of the Respondents may be published puts the individual Respondents to this application at risk of harm. In their submissions in support of their application the Respondents referred to the significant potential for the matter to be reported in the media should it proceed to hearing, with the potential for the Respondents to be identified in any commentary on the matter. The Respondents expressed no objection to a public hearing of the matter and solely sought the publication of any decision in respect of the application de-identify the Respondents.

[4] On the other hand, the Applicant has requested the suppression of her name and any identifying material in any Commission listing of the application, any Commission publication and during public hearings. The Applicant submits that the Commission should publish and name the Respondents. In support of her application, the Applicant refers to refers to s.20 of the Public Interest Disclosure Act 2013 (the PID Act) and also section 4.9(b) of the Australian Government’s Legal Services Directions 2005 1.

[5] In response, the Respondents submitted that they did not have any objection to the Applicant’s name being withheld provided that the Respondents’ names and any witnesses were similarly withheld from publication. Alternatively, the Respondents submitted that the name of the employer in this case could be published but the names of individual Respondents be withheld.

The relevant statutory provision is s.593 of the Act which provides:

“593 Hearings

(1) The FWC is not required to hold a hearing in performing functions or exercising powers, except as provided by this Act.

(2) If the FWC holds a hearing in relation to a matter, the hearing must be held in public, except as provided by subsection (3).

Confidential evidence in hearings

(3) The FWC may make the following orders in relation to a hearing that the FWC holds 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) orders that all or part of the hearing is to be held in private;
(b) orders about who may be present at the hearing;
(c) orders prohibiting or restricting the publication of the names and addresses of persons appearing at the hearing;
(d) orders prohibiting or restricting the publication of, or the disclosure to some or all of the persons present at the hearing of, the following:

(ii) evidence given in the hearing;
(iii) matters contained in documents before the FWC in relation to the hearing.”

[6] In a recent decision, Amie Mack v Bank of Queensland Limited; Michelle Locke; Matthew Thompson; Stacey Hester; Christine Van Den Huevel; Jane Newman 2 (BOQ), Vice President Hatcher dealt with the issue of an application to de-identify the respondents in a bullying application. At paragraph [6] of that decision, Hatcher VP sets out the main features of the principle of open justice as summarised in the NSW Supreme Court decision (Pembroke J) in Seven Network (Operations) Limited & Ors v James Warburton (No 1)3. For reasons of brevity, it is not necessary to repeat that summary here. Of particular relevance to the applications before me, Hatcher VP in BOQ explores the application of the principle of open justice in relation to the anti-bullying jurisdiction established by Part 6–4B of the Act. Specifically, Hatcher VP makes the following observations on this issue in BOQ:

“[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.” [Underlining added]

[7] In this case it was not submitted by the Applicant that publication of her name would have the effect of rendering her continuing engagement by the Department of Defence unviable. This factor does not support the making of an order regarding non-disclosure.

[8] Further, as noted above, the Applicant relied on s.20 of the PID Act as another reason for making an order regarding non-disclosure. However, s.20(3)(d) of the PID Act provides that:

Use or disclosure of identifying information

Disclosure of identifying information

Exceptions

...

(3) Subsections (1) and (2) do not apply if one or more of the following applies: ...

(d) the disclosure or use of the identifying information is for the purposes of:

(i) a law of the Commonwealth; or
(ii) a prescribed law of a State or a Territory; ...

Note: A defendant bears an evidential burden in relation to a matter in subsection (3) (see subsection 13.3(3) of the Criminal Code). [Underlining added]

[9] It is clear that the Act is a law of the Commonwealth. Accordingly, disclosure of the Applicant’s identity would not appear to be precluded by virtue of s.20(3)(d) of the PID Act.

[10] As to the Respondents’ submission regarding the risk of harm stemming from their identification, as was made clear by Hatcher VP in BOQ,it is not sufficient to justify the making of a non-disclosure order merely on the basis that allegations have been made which are embarrassing, distressing or potentially damaging to reputations. This does not support the making of an order regarding non-disclosure.

[11] For all of these reasons and drawing on the decision in BOQ, I am not satisfied that it is desirable to make the non-disclosure orders sought by the parties.

Permission to represent

[12] The Respondents seek permission to be legally represented in the proceedings regarding this matter. The Respondents submitted that legal representation is warranted by virtue of the complexity of the matter and that granting them permission to be represented would assist the Commission in the more efficient handling of the matter, particularly as there are factual and legal issues in dispute. The Respondents further submitted that in view of the relative newness of the Commission’s anti-bullying jurisdiction the matter offered the potential for establishing good legal precedent in relation to matters involving multiple individual respondents. The Respondents also submitted that were permission not granted the Respondents would be represented by an in-house advisor with limited experience in advocacy. The advisor’s factual familiarity with the specific matter may not be sufficient to assist the Commission in resolving the matter fairly and efficiently. Finally, the Respondents submitted that the Applicant will not be disadvantaged were the Respondents to be legally represented.

[13] The Applicant opposed the Respondents’ request to be legally represented. In short, the Applicant disputed that legal representation would assist the Commission to more efficiently deal with the matter. The Applicant further submitted that the Respondents had the capacity to effectively represent themselves, particularly given the seniority of some of the individual Respondents in this matter. On 1 May 2015, the Applicant forwarded to the Commission a series of emails relating to the Applicant’s general protections application. Those emails indicated that Defence Legal will advise line management “on everything relating to the Federal Court.” However, it is not clear from those emails whether Defence Legal will have sole carriage of the matter or whether counsel and/or external legal representation will be engaged. As a result, the emails are of limited value in determining the Respondent’s application for permission to be legally represented.

[14] Section 596 of the Act deals with the issue of representation by lawyers and paid agents. The relevant provisions are set out below.

“596 Representation by lawyers and paid agents

(1) Except as provided by subsection (3) or the procedural rules, a person may be represented in a matter before the FWC (including by making an application or submission to the FWC on behalf of the person) by a lawyer or paid agent only with the permission of the FWC.

(2) The FWC may grant permission for a person to be represented by a lawyer or paid agent in a matter before the FWC only if:

(a) it would enable the matter to be dealt with more efficiently, taking into account the complexity of the matter; or

(b) it would be unfair not to allow the person to be represented because the person is unable to represent himself, herself or itself effectively; or

(c) it would be unfair not to allow the person to be represented taking into account fairness between the person and other persons in the same matter.

Note: Circumstances in which the FWC might grant permission for a person to be represented by a lawyer or paid agent include the following:

(a) where a person is from a non English speaking background or has difficulty reading or writing;

(b) where a small business is a party to a matter and has no specialist human resources staff while the other party is represented by an officer or employee of an industrial association or another person with experience in workplace relations advocacy.”

[15] At the conference convened to deal with programming for the substantive hearing of this matter, the Respondents indicated that they were likely to lead evidence from ten witnesses, some of whom were Respondents in the matter. Based on the material before the Commission it is clear that a number of factual matters are disputed. Further, a key issue in the matter is whether or not the employer’s direction that the Applicant undergo an independent medical examination was a lawful direction. This involves legal issues concerning aspects of the statutory framework governing employment in the Australian Public Service. Taken together, these issues add a degree of complexity beyond what is generally the case in matters before the Commission. This supports a finding that there is sufficient complexity in this matter to warrant permission to represent being granted as it will enable the matter to be dealt with more efficiently, as required by s.596(2)(a) of the Act.

[16] In circumstances where a number of the Respondents have had little if any experience in appearing in the Commission, there is a legitimate argument as to whether that lack of experience would result in those persons not being able to represent themselves effectively. The Applicant submits that the seniority of the individual Respondents is a relevant consideration. While that may be the case in respect of the Respondents’ capacity to explain their version of events and the reasons for their actions, that seniority does not of itself equate to an understanding of the anti-bullying provisions of the Act and/or the workings of the Commission. This supports a finding that the ground in s.596(2)(b) of the Act has been made out.

[17] As the Applicant is not represented in this matter, s.596(2)(c) is not a relevant consideration with respect to the Respondents. Having said that, I would observe that I do not consider that the Applicant will be disadvantaged if permission was to be granted to the Respondent to be legally represented in these proceedings.

[18] Against that background, I have decided, primarily on the basis that legal representation will enable the matter to be dealt with more efficiently, to exercise the discretion available to the Commission to grant the Respondents permission to be legally represented in the proceedings.

DEPUTY PRESIDENT

 1     [2015] FWC 774

 3 [2011] NSWSC 385

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