Ms Averil Devine v Westpac Banking Corporation

[2021] FWC 1654

[2021] FWC 1654

FAIR WORK COMMISSION

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), the parties and the parties’ legal representatives.

(2) Pursuant to section 594(1) of the Fair Work Act 2009 an order that the Applicant’s legal representatives:

(a) retain all copies of witness statements, other evidence and submissions (including transcript of oral evidence and submissions) containing the Protected Information;

(b) may disclose the documents to the Applicant for the purposes of obtaining instructions but the Applicant may not retain copies of the documents herself;

(c) shall maintain all documents containing the Protected Information (including transcript and file notes) in confidential storage during the Proceeding; and

(d) shall, at the end of the Proceeding, return or undertake to destroy all documents containing the Protected Information (including transcript and file notes).

(3) The Respondent is directed to file any witness statements and further outline of submissions containing any Protected Information in a sealed envelope marked “CONFIDENTIAL & ONLY TO BE OPENED BY DEPUTY PRESIDENT BULL”.

(4) The Respondent is directed to serve any witness statements and further outline of submissions containing any Protected Information in a sealed envelope marked "CONFIDENTIAL & ONLY TO BE OPENED BY SEAN HOWE OF TURNER FREEMAN LAWYERS".

(5) Pursuant to section 593(3) of the Fair Work Act 2009 an order that:

(a) all of the hearing be held in private; and

(b) the only persons permitted to be present at the hearing are the parties to the Proceeding and their legal representatives.

(6) In the event that any of the above orders are to be revoked or varied, the Commission shall give the Respondent 21 days' notice that the orders are to be revoked or varied, so as to allow the Respondent (or the regulator) to make a further application as to any evidence or submissions it has filed in the Proceeding containing or referring to the Protected Information.

(7) Liberty to apply.

NOTATION:

(8) The Commission shall keep all documents containing the Protected Information (including transcript) in confidential storage and shall, as the Commission sees fit, return or destroy those documents at the end of the Proceeding.

(9) The Commission will not publish in its Decision in these Proceedings any Protected Information.”

[8] In support of its application Westpac submitted that its application was in essence a non-publication order to any third parties where the Protected Information may be shown to Ms Devine for the purposes of obtaining instructions with the documents retained by the Applicant’s legal representatives and kept confidential, other than for use in the hearing.

[9] Westpac states that the amended confidentiality order application arises from further discussions with the regulator, who on 15 March 2021 granted an exemption for Westpac to disclose the Protected Information based on the confidentiality orders now being sought. 4

[10] The applicant in opposing the confidentiality orders notes that Westpac has still not identified the regulator or the source of the alleged confidentiality prohibitions and the application is unsupported by any evidentiary material. The respondent also questions the veracity of the submissions previously made in respect to what the regulator had previously stated. 5

[11] The applicant also submits that she will be prejudiced in that the orders sought would not allow her or her representative to make enquiries as to whatever matters will be asserted by Westpac or to interview potential witnesses. 6

[12] The applicant also raises issues in respect to the time period between the hearing and being provided access to the Protested Information and that any adjournment of the hearing will cause difficulties with Counsel’s availability and that further delay is unjust as she remains unemployed.

[13] Westpac deny that there has been any abuse of process and that it at all times has correctly stated the position of the regulator. 7

Conclusion

[14] Westpac’s initial confidentiality orders were not granted on the basis that they would deny the applicant from being able to present her case to the best of her ability where the reasons for her dismissal are only advised to the Commission. The decision held that on the basis of what Westpac had submitted there would justification in issuing confidentiality orders restricting access to the Protected Information to any third party and making the proceedings confidential. The confidentiality orders now sought by Westpac attempt to reflect this finding by restricting the Protected Information to the parties.

[15] It was clear that in the first instance that Ms Devine without being advised of the reasons for her dismissal would have been significantly disadvantaged in obtaining a successful outcome without knowledge of the reasons for her dismissal. At the same time, Westpac not being able to disclose the reason for Ms Devine’s dismissal at any hearing would encounter significant difficulty in defending the unfair dismissal application having regard to the provisions of s.387 of the Act that the Commission must take into account in determining the merits of an unfair dismissal application.

[16] The Commission must apply justice to both parties or in the words of s.381(2) of the Act “ensure that a fair go all round is accorded to both the employer and employee concerned.”

[17] The Commission is satisfied that the confidentiality orders sought by Westpac should issue to enable the unfair dismissal application to progress in a manner consistent with s.381(2). While acknowledging the issues of prejudice raised by the respondent, these matters are not insurmountable, and the orders provide liberty for either party to apply for a variation. In any event, the Commission in determining this matter will consider any difficulties or prejudice that the orders may cause the applicant should and when they arise.

[18] It is noted that Ms Devine seeks only that she be reinstated should she be successful in her application. The Commission is empowered to make an order to retore lost remuneration because of an unfair dismissal where it considers it appropriate to do so. 8

[19] The matter will now be listed for a telephone mention on 8 April 2021 at 10am to further program the matter with the current hearing date of 14 April being vacated.

DEPUTY PRESIDENT

Final written submissions:

Westpac Banking Corporation

24 March 2021

Ms Devine

24 March 2021

Printed by authority of the Commonwealth Government Printer

<PR728120>

 1   Email to parties advising of matter to be decided on the papers unless otherwise advised 25 March 2021

 2   Averil Devine v Westpac Banking Corporation [2021] FWC 739

 3   Ibid at [65] and [68]

 4   Westpac written submissions dated 18 March 2021

 5   Applicant’s written submissions of 22 March 2021 at [15]

 6   Ibid at [16]

 7   Westpac written submissions of 24 March 2021

 8   S.391(3)