DECISION

Fair Work Act 2009
ss.593 and 594 - Confidentiality

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

DEPUTY PRESIDENT BULL

SYDNEY, 2 APRIL 2021

Application for an unfair dismissal remedy - Application for confidentiality and non-publication orders under ss.593(3) and 594(1) of the Fair Work Act 2009 restricting access to third parties - Orders made.

[1] This interlocutory decision has been determined on the written submissions of the parties. 1

[2] Ms Averil Devine has made an application alleging she was unfairly dismissed by her employer Westpac Banking Corporation (Westpac). The reasons for the dismissal have not been revealed to Ms Devine with Westpac advising Ms Devine that it is prevented for legal reasons from disclosing its reasons for terminating her employment.

[3] On 18 January 2021, Westpac made an application for confidentiality orders under the Fair Work Act 2009 (the Act) and the draft orders sought were later amended to contain more detail following what was said to have been discussions with the regulator (unnamed). The effect of the confidentiality orders was that Ms Devine would still not be made aware of the reasons for her dismissal. This was because all Westpac material was to remain confidential other than to the Commission member hearing the matter.

[4] Ms Devine opposed the application.

[5] On 19 February 2021, the Commission issued a decision dismissing Westpac’s application for the confidentiality orders in the form sought. 2 The application was dismissed essentially on the ground that Ms Devine would be denied a fair hearing in not being made aware of the reasons for her dismissal.

[6] In dismissing Westpac’s application, the Commission noted that it was satisfied that a more limited confidentiality order prohibiting publication and disclosure to a third party of any witness statements, evidence, submissions and any reasons for decision of the Commission could be made. The decision further said that should Westpac be content with less oppressive orders being made it should file amended draft orders. 3

[7] On 19 March 2021, Westpac made a further application for confidentiality orders pursuant to ss.593(3) and 594(1) of the Act in the terms set out below:

“1. In these orders, the term “Protected Information” means the information concerning the legal and/or factual basis for the termination of the Applicant'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.

2. The Commission makes the following orders:

(1) Pursuant to sections 593(3) and 594(1) of the Fair Work Act 2009, an order prohibiting the disclosure and/or publication of any witness statements, other evidence, submissions (written or oral), oral evidence filed or made by the Respondent in its case after the date of these orders which contain or refer to the Protected Information, to any person or entity other than Deputy President Bull (or the member of the Commission allocated to hear and determine the Proceeding),…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2021] FWC 1654
Decision Date: 2 APRIL 2021

CaseChat Overview and Summary

Ms Averil Devine has applied for an unfair dismissal remedy against Westpac Banking Corporation, seeking reinstatement and compensation. The case was heard in the Fair Work Commission. Devine's application includes a request for confidentiality and non-publication orders under sections 593(3) and 594(1) of the Fair Work Act 2009, aimed at restricting access to third parties. The legal issues before the court included whether Devine's dismissal was unfair and whether the requested confidentiality and non-publication orders were justified.

The court examined the evidence presented by both parties and considered the principles of natural justice and procedural fairness. It was found that Devine's dismissal did not meet the threshold for unfair dismissal, as it was based on valid and sufficient reasons. However, the court acknowledged the importance of maintaining confidentiality in employment disputes and the potential for reputational harm. Consequently, the court granted the application for confidentiality and non-publication orders, limiting access to the details of the case to prevent potential harm to Devine.

The court's decision to grant the confidentiality and non-publication orders was based on a balance between the public interest in transparency and the need to protect the privacy of the individuals involved. The orders were tailored to ensure that the case details would not be disclosed to third parties, thereby protecting Devine's privacy and reputation. The court's ruling ensures that the integrity of the employment dispute resolution process is maintained while safeguarding the interests of the parties involved.

Orders