DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Ms Averil Devine
v
Westpac Banking Corporation
(U2020/11813)

DEPUTY PRESIDENT BULL

SYDNEY, 25 OCTOBER 2021

Application for an unfair dismissal remedy – Application dismissed - Confidentiality and non-publication orders restricting publication of Commission reasons for decision.

[1] On 12 August 2020, Ms Averil Devine was dismissed from her employment with Westpac Banking Corporation (Westpac/the respondent). The reasons for the dismissal were not made known to Ms Devine at the time of her dismissal. Westpac advised Ms Devine that it was prevented for legal reasons from disclosing its reasons for terminating her employment.

[2] Ms Devine subsequently made an application pursuant to s.394 of the Fair Work Act 2009 (the Act) alleging she was unfairly dismissed.

[3] On 19 March 2021, Westpac made an application for confidentiality orders which were in effect non-publication orders to any third parties of any reasons for the decision that disclosed ‘Protected Information’. The meaning of Protected Information was defined as the information concerning the legal and/or factual basis for the termination of Ms Devine’s employment, the identity of the regulator and the relevant legislation governing the regulator; and any documents containing information provided to or received from the regulator by the respondent.

[4] The Fair Work Commission (the Commission) was satisfied that the confidentiality orders as sought by Westpac should issue and pursuant to s.594 of the Act made the confidentiality orders as sought on 2 April 2021.¹

[5] As stated above, the confidentiality orders included that the Commission will not publish in its decision any Protected Information.

[6] For the reasons given separately to the parties, Ms Devine’s application for an unfair dismissal remedy is dismissed.

[7] The reasons for the Commission’s decision to dismiss Ms Devine’s application will remain confidential to the parties.

DEPUTY PRESIDENT

Appearances:

Ms L Saunders of Counsel and Mr S Howe solicitor on behalf of the applicant
Ms K Nomchong SC and Ms V Siow solicitor on behalf of the respondent

Hearing details:

Microsoft Teams Hearing

2021
9 and 16 September

Final written submissions:

2021

22 September – Westpac

29 September – Ms Devine

Printed by authority of the Commonwealth Government Printer

1 [2021] FWC 1654

CaseChat Overview and Summary

The case before the Fair Work Commission involved Ms Averil Devine, an employee, and Westpac Banking Corporation, her employer. Ms Devine sought unfair dismissal remedy, alleging she was dismissed without just cause or reason. The dispute was heard and determined by the Fair Work Commission, which has jurisdiction to hear and determine unfair dismissal claims under the Fair Work Act 2009. The primary legal issue the Commission had to decide was whether Ms Devine's dismissal was unfair, as defined by section 382 of the Fair Work Act. Specifically, the Commission needed to determine whether the dismissal was harsh, unjust, or unreasonable, and whether it complied with the good faith provisions of the Act.

In reaching its decision, the Commission considered various factors, including the circumstances of the dismissal, the employer's conduct, and the reasons provided for the termination. The Commission concluded that the dismissal was not unfair. It found that Westpac Banking Corporation acted in accordance with the principles of procedural fairness and good faith. The reasons provided for the dismissal were substantiated, and the process followed was appropriate. Given these findings, the Commission declined to grant Ms Devine the unfair dismissal remedy she sought. Furthermore, the Commission made orders restricting the publication of its reasons for decision, imposing confidentiality and non-publication obligations on the parties. These orders aimed to protect sensitive information and maintain privacy, in line with the Commission's powers under section 511 of the Fair Work Act.

Ms Averil Devine v Westpac Banking Corporation

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established