Sonia Esposito v Chandler Macleod Group Ltd

[2021] FWC 2629

[2021] FWC 2629

FAIR WORK COMMISSION

DECISION

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

Sonia Esposito
v
Chandler Macleod Group Ltd
(U2021/524)

COMMISSIONER CIRKOVIC MELBOURNE, 10 MAY 2021

Application for unfair dismissal remedy – application for confidentiality order – application for closed hearing – applications opposed – principles of open justice discussed – sections 593(2) and 594 discussed – Orders made.

[1] On 6 April 2021, Ms Sonia Esposito (the Applicant / Ms Esposito) made an application under section 594 of the Fair Work Act 2009 (the Act) for a confidentiality order to be made in relation to the hearing of her earlier application for an unfair dismissal remedy under section 394.

[2] Chandler Macleod (the Respondent) substantively opposes the application and ask that it is dismissed.

[3] I issued Directions on 8 April 2021, directing that both sides file submissions and material to Chambers.

[4] On 16 April 2021, the Applicant provided the following documents in support of the application:

•  A table of all documents sought to be captured by the confidentiality order,

•  A psychology assessment dated 25 October 2020, and

•  Medical certificates dated between 12 July 2020 and 15 January 2021, along with email correspondence to the Respondent attaching the same.

[5] I also have regard to the contents of the Applicant’s Form F1 in which the application was originally filed on 6 April 2021.

[6] On 23 April 2021, the Respondent filed submissions objecting to the issuing of confidentiality orders and/or a private hearing.

Background

[7] The Applicant worked as a Services Officer for the Respondent between 21 January 2020 and 30 December 2020, on assignment to Services Australia.

[8] The Respondent has provided a chronology of the salient events during and around the employment relationship, as set out below. For the purposes of the matter currently before me, any factual contest between the parties as to this chronology is not determinative of any issue relevant to the application for confidentiality orders, and can be dealt with at the substantive hearing if necessary:

•  16 October 2020, the Applicant was given a first written warning,

•  20 October 2020, the Applicant commenced a period of unpaid personal leave, the medical certificates earlier referred to relate to this period,

•  18 December 2020, the Respondent issued a show cause letter inviting the Applicant to say why her assignment should not end in light of her prolonged and ostensibly indefinite absence,

•  23 and 24 December 2020, the Applicant forwarded to Ms Ashleigh Rea, a two-part letter of complaint, and requested that a decision as to the termination of her assignment not be made until receipt of these documents,

•  30 December 2020, the Respondent terminated the Applicant’s assignment with Services Australia, stating that the complaint letter was not relevant to the issues raised in the show cause letter and that the Applicant’s absence was not sustainable,

•  20 January 2021, the Applicant applied for an unfair dismissal remedy,

•  2 February 2021, the Respondent replied to the unfair dismissal application and in doing so raised the jurisdictional objection that they did not dismiss the Applicant,

•  25 February 2021, the Applicant enquired about an alternative assignment with the Respondent.

[9] The Respondent’s jurisdictional objection is listed before me for hearing on 13 May 2021.

Submissions

Applicant

[10] As stated above, the Applicant’s submissions are set out in her Form F1 dated 6 April 2021, and submissions filed 16 April 2021. I have taken the entirety of the Applicant’s submissions into account without restating them, in coming to my decision. In essence the Applicant asserts that she has a:

“a right to privacy, health and safety (sensitive and personal confidential matters protected), and self-represented with a right to a fair hearing without prejudice (applicant unfairly disadvantaged with inadequate legal support or access, without suffering further economic hardship and ongoing health distress due to this matter, and an inability to fully intellectually comprehend law as a commoner/individual)” 1

[11] The Applicant has otherwise focused her efforts on providing an extensive list of documents and categories of materials that she believes should be captured by the confidentiality order.

[12] The Respondent’s submissions for objecting to confidentiality orders being made are broadly set out below as follows:

•  There is no ‘right to privacy’ within the Australian judicial system, on the contrary, the principle of ‘open justice’ presents a presumption of transparency,

•  The Full Bench of the Commission has found that this presumption of transparency applies to matters before the Commission:

“The principles of open justice elicited above are applicable to the proceedings before the Commission. Importantly, we note that the departure from the principles of open justice is only justified where observance of the principle would frustrate the administration of justice by unfairly damaging some material private or public interest. Thus, it is incumbent upon us to make such an observation in order to issue an ongoing confidentiality order for the purposes of the matter before us.” 2

•  “Ms Esposito has not demonstrated any material private or public interest as to why her application for unfair dismissal should be made confidential, she has just made bare assertions that there is risk of retribution to her former colleagues, and risks to her financial, mental and physical health”,

•  “Ms Esposito’s case is unremarkable, a broad reaching and persisting confidentiality order would be inappropriate and contrary to the principle of open justice, and to the extent that any sensitivity does arise, individual documents can be appropriately redacted”,

•  If Ms Esposito “wants to escape public scrutiny of her employment record and the circumstances that led to the end of her assignment with Services Australia, then the proper course is for her to withdraw her application, not to ask the Commission to indulge her request for anonymity contrary to the presumption in S.593 of the Fair Work Act 2009”. 3

Legal principles

[13] Sections 593 and 594 relevantly provide as follows:

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:

(i) evidence given in the hearing;

(ii) matters contained in documents before the FWC in relation to the hearing.

…

594 Confidential evidence

(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.

[14] It is not in contest that the Commission is broadly empowered with the discretion to make confidentiality orders of the type sought by the Applicant, primarily where the evidence is confidential, and further, if it is desirable to do so for any other reason. 4

[15] In Amie Mac v Bank of Queensland Limited & Ors[2019] FWC 2885 (“Amie Mac”), a case which concerned an application for orders to stop bullying, Vice President Hatcher helpfully set out the principles which are to be considered in an application for confidentiality orders. The principles are also relevant to the present application. I have respectfully adopted the reasoning and principles set out in Amie Mac. In that case, Vice President Hatcher said:

“[6] The principle of open justice will usually be the paramount consideration in determining whether a confidentiality order of the type sought by the respondents ought be made. The main features of that principle were usefully summarised in the NSW Supreme Court decision (Pembroke J) in Seven Network (Operations) Limited & Ors v James Warburton (No 1) as follows:

“[2] The reason for the principle of open justice is that, if the proceedings of courts of justice are fully exposed to public and professional scrutiny and criticism, and interested observers are able to follow and comprehend the evidence, the submissions and the reasons for judgment, then the public administration of justice will be enhanced and confidence in the integrity and independence of the courts will be maintained: Russell v Russell ; Farrelly v Farelly (1976) 134 CLR 495 at 520 (Gibbs J). Not only does the conduct of proceedings publicly and in open view assist in removing doubts and misapprehensions about the operation of the system, but it also limits the opportunity for abuse and injustice by those involved in the process, by making them publicly accountable. Equally, public scrutiny operates as a disincentive to false allegations and as a powerful incentive to honest evidence: J v L& A Services Pty Ltd (No 2) [1995] 2 Qd R 10 at 45 (Fitzgerald P and Lee J). For all those reasons, the principle of open justice is not only an indispensable feature of our system, but it is also a healthy feature.

[3] There are limited exceptions to the principle of open justice. Where those exceptions apply, the courts will restrict access where appropriate. But departure from the principle of open justice is only justified where observance of the principle would in fact frustrate the administration of justice by unfairly damaging some material private or public interest. To that end, an order restricting the public availability of information will only be made if it is really necessary to secure the proper administration of justice. Such an order must be clear in its terms and do no more than is necessary to achieve the due administration of justice. Furthermore, there must be some material before the Court upon which it can reasonably reach the conclusion that it is actually necessary to make an order of that type: John Fairfax & Sons Ltd v Police Tribunal of New South Wales (1986) 5 NSWLR 465 at 476-7 (McHugh JA); Caroona Coal Action Group Inc v Coal Mines Australia Pty Ltd (No 4) [2010] NSWLEC 91 (Preston CJ); Idoport Pty Ltd v National Australia Bank [2001] NSWSC 1024 (Einstein J).

[4] The consequence of the principle of open justice is that embarrassing, damaging and inconvenient facts may occasionally come to light. That consideration has never been regarded as a reason in itself for the suppression of evidence or for an order restricting access to documents: John Fairfax Group Pty Ltd (Receivers& Managers Appointed) v Local Court of New South Wales & Ors (1991) 26 NSWLR 131 at 142 (Kirby P). Equally, it is common for sensitive issues to be litigated and for information that is extremely personal or confidential to be disclosed. This is sometimes an unavoidable by-product, and a necessary consequence, of the application of the principle.

[5] To avoid the consequences that sometimes follow from the conduct of proceedings publicly and in open view, parties can, and frequently do, choose to litigate their disputes by private commercial arbitration. But if they choose to litigate in court, they must accept the necessity for the Court to conduct its proceedings openly and with transparency.”

[7] The above passage describes the open justice principle in relation to courts, but I consider that the passage is equally applicable to a tribunal such as this Commission which conducts its processes in a quasi-judicial fashion.

[8] As identified in the passage quoted, departures from the principle of open justice may be permitted where not to do so would defeat the proper administration of justice. For example, in criminal proceedings involving an allegation of blackmail, identifying details of the target of the alleged blackmail will often be suppressed in order that the system of justice does not serve to aid the blackmailer. Genuine trade secrets and commercially confidential information may be the subject of orders restricting publication and disclosure where their exposure in the course of litigation may result in a litigant suffering the injustice of detriment at the hands of a competitor.

[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.

[10] If a party applies for confidentiality orders on the basis that disclosure of sensitive information is likely to endanger the viability of a continuing working engagement, then that party will need to positively satisfy the Commission that this is the case. It is not sufficient for this simply to be asserted. In this case, the respondents have submitted that de-identification was appropriate because it would:

(1) minimise the negative impact that any open proceedings may have on Ms Mac, particularly in relation to her ability to return to work;

(2) minimise the negative impact that any open proceedings may have on the health of Ms Mac;

(3) minimise the adverse impact on the individual respondents of untested allegations, including allegations to the effect that they (being lawyers) have breached the Australian Solicitors’ Conduct Rules; and

(4) minimise unnecessary knowledge of the proceedings amongst BOQ employees, thereby minimising the potential to adversely affect any return to work by Ms Mac.

[11] In relation to contentions (1), (2) and (4) above, if the Commission was positively satisfied that the disclosure of the names of the individuals involved in this matter would seriously endanger the ability of Ms Mac, who is currently off work because of psychological illness, to ever return to her employment with BOQ, then that would form a proper basis for the making of de-identification orders under s.593(3) of the FW Act. However the contentions in this respect did not rise above the level of generalised assertions. There was nothing in the evidence, including the medical evidence, which could form a proper basis for the conclusion that the identification of the names of the relevant individuals would be likely to prevent Ms Mac from returning to work at an appropriate time. Ms Mac herself, who had access to competent legal and medical advice, expressed no concerns on this score and was opposed to the making of de-identification orders.

[12] Contention (3) is misconceived. There is no issue of “untested” allegations here, because the allegations have been tested at the hearing and will be the subject of findings in this decision. Whilst I do not anticipate that the findings I intend to make will give any of the individual respondents concern for their reputations, the possibility of the effect of adverse findings on the reputation of individuals is not in itself a proper basis for the non-disclosure of the names of those individuals, for the reasons already discussed. For example, although in this case there is no basis whatsoever to find that any of the individual respondents have as lawyers breached the Australian Solicitors’ Conduct Rules, were it necessary for me to make such a finding, the principle of open justice as well as the public interest would support the identification of the person(s) the subject of such a finding.

[13] Accordingly I do not consider there to be any proper basis for the making of the de-identification orders sought by the respondents and I reject their application in this respect.”

(Footnotes omitted)

Consideration

[16] I consider that the Fair Work Commission must operate in an open and transparent way that is consistent with the principle of open justice required by courts and tribunals generally in Australia. 5 There is therefore a presumption that a hearing will not be closed, and that evidence, submissions and related materials will not be made confidential.

[17] In the context of unfair dismissal applications, this transparency is crucial to ensuring that the Commission achieves its mandate of providing a ‘fair go all round’ to both employees and employers. 6 An open system allows public scrutiny of the Commission, as well as the respective cases of the parties themselves.

[18] In considering whether to exercise my discretion to make a confidentiality order of broad application and persisting effect as sought by the Applicant, I must weigh the Applicant’s private interest against the principles of open justice referred to above.

[19] The Respondent has listed two documents that it considers may “contain personal information that is protected”, the first being the Applicant’s registration contract, and the second a letter dated 25 October 2020. Having reviewed the documents, and in light of the Respondent’s concession, I am prepared to grant the Applicant’s request for confidentiality as to those two documents.

[20] Aside from the documents listed above, I do not consider that the Applicant has given compelling reasons why any other document is confidential, or should be made confidential, for any other reason.

[21] Medical certificates are, by their design, intended to be scarcely detailed to protect doctor-patient confidentiality. Apart from documenting when the Applicant saw the practitioner and which dates the practitioner considers the Applicant unfit for work, a medical certificate conceals all other details. I do not consider that exposure of these details will cause risk of harm to the Applicant.

[22] To the extent that medical certificates, and/or reports, do expose confidential details, they can be redacted on an ad hoc basis. The Commission has no interest in exposing the Applicant to a risk of harm, and I believe that targeted redaction on a document-by-document basis, as they are submitted during hearing, can remove inherently confidential elements of this evidence without compromising the overriding mandate to conduct the hearing openly.

Conclusion

[23] The Applicant has chosen to dispute the fairness of her alleged termination by the Respondent, which as a national system employee, she is entitled to do before the Commission. But, in exercising that right she has put in motion a formal legal process before the Commission. Part of that process is submitting oneself to open justice.

[24] For the foregoing reasons, I have decided to exercise my discretion to make a confidentiality order to the limited extent referred to above. I refuse the request for a closed hearing of this matter. An Order to that effect is published concurrently with this Decision. 7

COMMISSIONER

Final written submissions:

Applicant, 16 April 2021.

Respondent, 23 April 2021.

Printed by authority of the Commonwealth Government Printer

<PR729680>

 1   Form F1 – application for confidentiality order, 6 April 2021.

 2   United Firefighters’ Union of Australia v Metropolitan Fire and Emergency Services Board (‘United Firefighters’), [2017] FWCFB 2500, [34].

 3   Submission of Respondent re: Confidentiality, 23 April 2021.

 4   DP World Melbourne Limited T/A DP World; Maritime Union of Australia, The Victorian Branch and Others, [2015] FWC 4542, [14].

 5   United Firefighters, above n 2.

 6 See s.381(2), Fair Work Act 2009.

 7   PR729681.