Ms Alexie Wallace vBurswood Resort (Management) Limited

[2019] FWC 6005

[2019] FWC 6005

FAIR WORK COMMISSION

INTERLOCUTORY DECISION

Fair Work Act 2009
s.365 - Application to deal with contraventions involving dismissal

Ms Alexie Wallace
v
Burswood Resort (Management) Limited
(C2019/1244)

DEPUTY PRESIDENT CROSS SYDNEY, 29 AUGUST 2019

Application to deal with contraventions involving dismissal – Application for confidentiality order

[1] On 21 February, 2019, Ms Alexie Wallace (“the Applicant”) lodged an application pursuant to s.365 of the Fair Work Act 2009 (Cth) (“the Act”). The Applicant was employed, by Burswood Resort (Management) Limited t/a Crown (“the Respondent”). The Applicant commenced her employment with the Respondent in February 2014. She alleged her dismissal took effect in April, 2016, and she was notified of her dismissal in June, 2016. The Respondent denies that the Applicant was ever terminated and states that she remains a casual employee of the Respondent.

[2] General protections applications must be made within twenty-one (21) days after a dismissal took effect, or in such further time as the Fair Work Commission (“the Commission”) may allow. Taking as the point of calculation the date when the dismissal allegedly took effect, an application for a remedy should have been lodged by some time in May, 2016. The application was therefore lodged outside of the time prescribed and was, in effect, lodged at least approximately two years and eight months after the last day on which such an application could have been made.

Background

[3] On 6 May, 2019, a Directions Hearing was conducted to program the manner in which the Applicant’s application to be allowed an additional period within which to lodge her application (“the Application”) would be determined. The Directions were issued that provided for a timetable for the filing of Outlines of Submissions from both parties addressing the out of time issue, together with any witness statements and other documentary material upon which each party intended to rely. On 16 May, 2019, the Applicant requested an extension of time for filing her submissions. That request was granted.

[4] On 27 May, 2019, the Applicant filed with the Commission an Outline of Submissions addressing extension of time (“the EOT Submission”), together with a number of supporting documents. Some of those documents were forwarded by the Commission to the Respondent by email and thereafter issues as to the confidentiality arose in relation to some of those documents. Those issues were resolved by the deletion of all emails by the Respondent.

[5] On 31 May, 2019, the Applicant enquired as to how to obtain a confidentiality order, and on 7 June, 2019, she sought such an order, with the request in the following terms:

“I would like to apply for a confidentiality order relating to all medical documentation I have submitted. I am unsure if this is possible but I have been advised that I am able to request this.”

[6] In order to ensure that there was a clear understanding of the specific documents in relation to which confidentiality was sought, the Applicant was requested to provide the totality of documents in relation to which she sought a confidentiality order to the Commission for consideration.

[7] Between Friday, 5 July, 2019, and Monday, 8 July, 2019, six emails with attachments were received from the Applicant (“the Confidential Documents”). Certain clarification of the contents of those emails was sought by the Commission on 11 July, 2019, most particularly whether the Applicant still relied upon the EOT Submission.

[8] On 29 July, 2019, a further Directions Hearing was conducted. In that hearing the Applicant confirmed that she relied upon the EOT Submission. The Applicant was also asked by the Commission to consider, in lieu of a confidentiality order, whether she would consent to only the Respondent’s representative, Ms Martina Ivanovski of the Chamber of Commerce and Industry WA, having access to the Confidential Documents over which confidentiality was sought (“the Confidentiality Proposal”).

[9] On 1 August, 2019, the Applicant responded to the Confidentiality Proposal as follows:

“Thank you for being in touch on Monday.

I believe it would be best for the submission of witness statements from the respondent occur prior to the release of the medical documents to Ms. Ivanovski.

Although it has been said that under a confidentiality order only she would have access to the documents, I have no guarantee that her knowledge of the contents alone would then not affect what is chosen to be submitted.

Knowledge of the medical documents and their contents could bias what is ultimately submitted in regards to witness statements.

While the confidentially order would prevent Ms Ivanovski from sharing the contents of the documents - I have would have no guarantee that this would have no bearing on the witness statements in regards to what is chosen to be submitted or omitted.

There will ultimately be no means by which to prove or disprove this either. The only way to ensure this would be to provide the medical documents under a confidentiality order only after witness statements by the respondent are submitted.

The documents have been submitted to support an out of time application. Procedural fairness as I see it requires the other party to know what information a decision is made upon and have the opportunity to respond, however it seems potentially detrimental to natural justice to provide such sensitive information at this point.

In regards to the other documents as requested I will advise by the end of the week/ASAP. I have been in contact regarding this delay.

As a final note, I write this particularly because the respondent claimed that crown had no knowledge of any hospitalisation in a previous phone conciliation. This is false.

If you could please advise what is possible …”

[10] The proposal contained in the above email was rejected by the Commission on 1 August, 2019, and the Applicant was asked to again consider the Confidentiality Proposal as an acceptable way of dealing with the matter. That request to the Applicant was repeated on 5 and 8 August, 2019.

[11] On 6 August, 2019, further confidential documents were provided by the Applicant to the Commission, and the Applicant requested that they remain confidential (“the Further Confidential Documents”).

[12] On 20 August, 2019, the Respondent acceded to the Confidentiality Proposal subject to being granted liberty to apply to vary any confidentiality undertaking after considering the Confidential Documents (and presumably the Further Confidential Documents).

[13] Later on 20 August, 2019, the Applicant responded rejecting the Confidentiality Proposal in an email that contained numerous submissions, two of which were as follows:

“(I) The document I have submitted regarding the merits of the case does not make its case on these medical records”

and

“(vi) I have made the decision to submit an outline of the merits of my case under the request that the confidential documents are given at a time that is appropriate.”

[14] On 24 August, 2019, the Applicant forwarded to the Commission, and to the Respondent, a screenshot of the front page of a paper titled “Administrative Appeals Tribunal and ACT Bar Association Seminar “The Obligation to Assist” 26 August 2009”.

Consideration

[15] Subsection (1) of Section 594 of the Act provides:

“(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.”

[16] Section 594(1) is a discretionary power that allows 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.

[17] As Deputy President Gostencnik observed in Bowker and Ors v DP World Melbourne Limited t/a DP World and Ors 1 (“DP World”):

“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.”

[18] The Confidential Documents and the Further Confidential Documents traverse a range of medical documents, ranging from mere invoices and private health claim histories, to reports with clearly confidential contents. For the purposes of the application for a confidentiality order, I am prepared to proceed on the basis that the Confidential Documents and the Further Confidential Documents are in fact “confidential” as that term is used in s.594 of the Act.

[19] The Applicant, being a self-represented litigant, has not been put to the task of specifically defining the orders she seeks, but from the various submissions and communications received, particularly as outlined at paragraphs [9] and [13] above, she seeks:

(a) That the Confidential Documents and the Further Confidential Documents be treated as confidential; and

(b) The Applicant is prepared to disclose the Confidential Documents and the Further Confidential Documents to Ms Ivanovski, subject to Ms Ivanovski giving a confidentiality undertaking, but only after the Respondent has filed their Submission, witness statements and other documents upon which they rely (“the Confidentiality Orders”).

[20] The Applicant specifically notes that the Confidential Documents and the Further Confidential Documents are submitted as relevant to the merits of the case but the Applicant does not make her case on these medical records.

[21] In my view, the orders that the Applicant seeks undermines the principle of open justice, and I would not exercise my discretion to adopt the course urged by the Applicant. The question of 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 2.

[22] TheConfidentiality Orders do not affect the Applicant, or the case she wishes to advance, in any material way because the Applicant has clearly put that she does not make her case on the medical records contained in the Confidential Documents and the Further Confidential Documents. That is clearly reflected in the contents of the EOT Submission where, while there are four general references to the Applicant’s health and medical condition, not one particular document contained in the Confidential Documents or the Further Confidential Documents is specifically referred to.

[23] Further, the Applicant does not object to the Respondent’s representative having access to the Confidential Documents and the Further Confidential Documents after the Respondent has filed their submission, statements and materials. She merely resists such access prior to the filing of those materials.

[24] The Respondent, on the other hand, would be significantly affected by the Confidentiality Orders. When filing its submission, statements and materials, it would be unaware of the contents of all materials provided to the Commission by the Applicant but for the EOT Submission. That scenario strikes at the heart of the principle of open justice.

[25] While it would be correct to observe that, when provided with the Confidential Documents and the Further Confidential Documents after filing their submission, statements and materials, the Respondent could seek to file further materials addressing those documents, why should the Respondent be put to the cost of such a ‘two step’ process? It serves no purpose.

Further Progress of the Matter

[26] On the Applicant’s application to be allowed an additional period within which to lodge her application I will consider the EOT Submission, containing as it does the four general references to the Applicant’s health and medical condition, but I will not consider the Confidential Documents and the Further Confidential Documents.

[27] The Applicant must file with the Commission, and serve on the Respondent, any other documentary material upon which she intends to rely in support of the Application by no later than 4.00pm on 6 September, 2019.

[28] The Respondent must file with the Commission, and serve on the Applicant, an outline of submissions, together with any witness statements and other documentary material upon which the Respondent intends to rely in opposition to the Application by no later than 4.00pm on 20 September, 2019.

[29] The Applicant must file with the Commission, and serve on the Respondent, any outline of submissions in reply, together with any witness statements and other documentary material in reply to the Respondent’s materials by no later than 4.00pm on 27 September, 2019.

[30] The matter will thereafter be determined on the materials filed by the parties.

DEPUTY PRESIDENT

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 1   [2015] FWC 4542, at [15].

 2   DP World at [20].