[2021] FWC 739

The attached document replaces the document previously issued with the above code on 19 February 2021.

Decision has been amended to fix typographical error. The abbreviation for the Union has been amended to ‘FSU’ throughout the document.

Associate to Deputy President Bull

19 February 2021

Fair Work Act 2009
ss.593(3) and 594(1) - Confidentiality

Averil Devine
v
Westpac Banking Corporation
(U2020/11813)

Application for confidentiality and non-publication orders under ss.593(3) and 594(1) of the Fair Work Act 2009 - Whether Commission considers orders should issue resulting in unfair dismissal hearing being determined in the absence of reasons for the dismissal being provided to the applicant - Natural justice issues considered - Application for orders refused.

[1] This interlocutory decision has been determined on the papers as agreed by the parties.

[2] Ms Averil Devine has filed in the Fair Work Commission (the Commission) an application alleging she was unfairly dismissed by her employer Westpac Banking Corporation (Westpac) on 12 August 2020.

Background

[3] Ms Devine commenced work in December 2011 as a Relationship Manager and states she was dismissed while in the position of Channel Manager. 1 Ms Devine’s application states that she seeks reinstatement and/or monetary compensation.

[4] By way of background, Ms Devine says that on 11 August 2020 she was asked by the Westpac National General Manager Home Ownership Distribution - Jason Green to attend a formal meeting the following day, on 12 August 2020. As a result of this request, Ms Devine’s representative from the Finance Sector Union (FSU) sent an email on 12 August 2020 requesting clarification of the purpose of the meeting to be held at 3:30pm that day and asked for it to be postponed.

[5] The FSU email to Westpac stated that Ms Devine was feeling extremely stressed as no substantive information had been provided about the purpose of the meeting which had been scheduled following the recent closure of Ms Devine’s customer accounts. Mr Green replied to the FSU by email advising that the meeting was cancelled, and later that day sent a further email to the FSU stating that for legal reasons, they were unable to discuss matters relating to the proposed meeting with Ms Devine.

[6] On the same day, 12 August 2020, Mr Green sent via email and post to Ms Devine correspondence advising that Westpac had decided to exercise its contractual right under her employment contract to terminate her employment. The correspondence noted that Westpac was prevented, for legal reasons from disclosing its reasons for terminating her employment. The correspondence advised that Ms Devine would be paid five weeks salary in lieu of notice in accordance with her contract, plus all other entitlements including unused annual leave and that she was required to return all property belonging to Westpac and that a courier would collect the property from her home address on 14 August 2020.

[7] The termination letter also advised that should Ms Devine apply for future employment at other banks or financial institutions that subscribe to the Australian Bankers’ Association Industry Conduct Background Check Protocol (where she had consented to a reference check being supplied by Westpac) this would not be forthcoming and the prospective employer would be advised that Westpac were ‘unable to respond’.

Unfair Dismissal Grounds

[8] Ms Devine’s application states that she was dismissed without being afforded any opportunity to discuss or respond to any concerns held by Westpac and that Westpac has failed to provide any reason for the dismissal prior to or subsequent to the dismissal.

[9] It is submitted that failure to provide such information is a breach of the Westpac Group Enterprise Agreement 2019 (Enterprise Agreement) which states under clause 44.1 titled The principle of procedural fairness that Westpac will not take disciplinary action or detrimentally alter an employee’s employment because of allegations against them, unless they have had a reasonable opportunity to respond to the allegations.

[10] It was stated that due to the size of Westpac and the vast resources at its disposal, the failure to afford Ms Devine procedural fairness results in the dismissal being unfair and has unjustly placed her in a position of considerable financial uncertainty.

Westpac Response

[11] In the Form F3 employer response dated 18 September 2020, Westpac stated that it was prevented for legal reasons from disclosing its reasons for terminating Ms Devine and that it has exercised its contractual right to terminate Mr Devine’s employment with the provision of five weeks’ pay in lieu of notice.

Directions and submissions

[12] At a telephone mention held with the Commission on 13 October 2020, Ms Devine’s legal representative advised that the only remedy sought was reinstatement, which was not agreed to by Westpac. As a consequence, the matter was listed for a hearing to be held on 2 December 2020. On the basis that Ms Devine was unaware of the reason for her dismissal, Westpac was required to file its material in the first instance.

[13] In accordance with the directions, Westpac filed an outline of submissions dated 3 November 2020, disputing that Ms Devine’s dismissal was unfair. Westpac stated that there was a valid reason for Ms Devine’s dismissal related to her integrity which caused the employer to lose trust and confidence in her as an employee. The submissions which were consistent with Westpac’s previous position stated that it was prevented by law from disclosing the basis upon which the dismissal occurred.

[14] It was further put by Westpac that it operates within the highly regulated financial services industry, which requires it to comply with a raft of legislative instruments in relation to its processes, systems and its relationships with customers and employees.

[15] Westpac’s written submission stated that together with other participants in the financial services industry it has been subject to intense scrutiny from regulators following the Royal Commission into Misconduct in the Banking, Superannuation and Financial Services Industry that concluded in February 2019.

[16] In view of this highly regulated environment, Westpac had cause to question Ms Devine’s integrity and, for reasons which it cannot disclose, to lose trust and confidence in her as an employee.

[17] Westpac, while acknowledging its obligations to provide procedural fairness under its Enterprise Agreement, further contended that the legal constraints placed it in an invidious position, meaning that it could not adopt its usual procedurally fair process. It was submitted that both Ms Devine and the FSU understand the regulatory environment of the banking industry.

[18] The dismissal was stated to be an appropriate and proportionate response to the questions placed upon Ms Devine's integrity and Westpac’s loss of trust and confidence in Ms Devine. 2

[19] A witness statement of Alexandra Rodoreda, Head of Employee Relations Legal, dated 3 November 2020 was also filed. Ms Rodoreda states that Ms Devine’s employment was terminated for reasons relating to her integrity causing Westpac to lose trust and confidence in her and that it would be unlawful for Westpac to disclose to any person, including Ms Devine any further information. 3

[20] Ms Rodoreda further states that in the event Ms Devine was successful in her unfair dismissal application it would be inappropriate to reinstate her to any position with Westpac due to the loss of trust and confidence for reasons associated with her integrity.

[21] On 19 November 2020, Westpac’s legal representatives requested that the directions be amended and that the hearing date of 2 December 2020 be vacated to be re-listed at a later date no earlier than 19 March 2021. The adjournment would provide Westpac an opportunity to file a further outline of submissions and any further witness statements. The adjournment request stated that Westpac has been engaging with the ‘regulator’ prior to making the adjournment request, for an exemption from the legal prohibition preventing the reasons for the dismissal being divulged.

[22] The adjournment application stated that if the proceedings were to continue as scheduled, the Commission would be required to make its decision in the absence of highly relevant evidence likely to result in a serious injustice to Westpac since it would be precluded from defending itself by adducing that evidence. The application referred to the applicant’s consent to the adjournment. The listing for the 2 December 2020 hearing was set aside and further amended directions were issued for Westpac to file its further material by 18 January 2021 and the matter was re-listed for hearing on 11 February 2021. 4

[23] On 15 January 2021, Westpac’s legal representatives wrote to the Commission stating that it would be making an application for confidentiality orders as the ‘regulator’ requires in the first instance that such orders be obtained before it can make a decision whether to allow the reasons for Mr Devine’s dismissal to be made known.

Application for Confidentiality Orders and further adjournment

[24] On 18 January 2021, Westpac filed an application seeking confidentiality orders pursuant to ss.593(3) and 594(1) of the Fair Work Act 2009 (the Act). The orders sought were to the following effect:

•  that all of the hearing be held in private;

•  that the only persons permitted to be present at the hearing are the parties to the proceeding and their legal representatives;

•  that the disclosure and publication of any witness statements, other evidence and submissions filed by Westpac in its case after the date of the confidentiality order application be restricted to the Commission member hearing the application; and

•  prohibition on the publication to any third party of witness statements, other evidence and submissions filed by Westpac in its case; and any reasons of the Commission that refer to any information referred to in Westpac’s submissions and evidence.

[25] The grounds upon which the confidentiality orders were sought repeated in substance what had been earlier advised, being that Westpac is prohibited by law from disclosing to any person or entity, certain information including, but not limited to, the basis for the termination of Ms Devine's employment.

[26] Westpac advised that it has received information from the regulator that if any exemption is granted, it will include a condition that Westpac must obtain from the Commission the confidentiality orders sought. 5

[27] It was stated that if the orders sought are not made by the Commission, Westpac's ability to defend itself will be severely limited and the Commission would be required to make a decision in the absence of highly relevant evidence, resulting in a serious injustice to Westpac.

[28] Also, on 18 January 2021, Westpac sought a further amendment to the existing directions requesting that it have additional time to file its further outline of submissions and witness statements and that any hearing date not be set down before the end of March 2021.

[29] Ms Devine’s legal representatives were invited to respond to Westpac’s requests and advised on 20 January 2021, that it did not object to proposed new directions allowing more time for Westpac to file any additional material and provided its own available dates for the proposed hearing.

[30] However, in respect to the application for confidentiality orders, the applicant submitted that there was an insufficient basis for the Commission to be satisfied that the orders were desirable.

[31] As a result of Westpac’s requests, the Commission listed a further telephone mention on 22 January 2021 with the parties, at the conclusion of which, the Commission requested Westpac file more fulsome submissions articulating the reasons for the confidentiality orders being sought. These submissions were received on 1 February 2021. The applicant was then provided an opportunity to submit any response which was submitted on 8 February 2021. The matter was re-listed to be heard on 14 April 2021.

Consideration

[32] Attached to Westpac’s written submissions of 1 February 2021 was a final set of proposed confidentiality orders sought, said to be slightly more detailed than the original orders due to further discussions with the regulator.

[33] In essence, the orders sought are directed to ensuring that any evidence or submissions filed by Westpac, which contain the Protected Information defined below, is kept confidential by the Commission and is not otherwise disclosed or published. This is the precondition on which the regulator has advised that it might grant an exemption to allow the Protected Information to be disclosed. 6 The orders sought are listed below:

1. In this matter, 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, the relevant legislation governing the regulator and any communications (oral or documentary) provided to or received from the regulator.

2. Subject to the Respondent being granted an exemption by the regulator to disclose the Protected Information, the Commission makes the following orders in relation to further evidence and submissions filed by the Respondent:

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

•  Pursuant to sections 593(3) and 594(1) of the Fair Work Act 2009, an order that the disclosure and/or publication of any witness statements, other evidence and submissions (including oral evidence and submissions) filed by the Respondent in its case after the date of this Application which contain or refer to the Protected Information, be restricted to Deputy President Bull (or the member of the Commission allocated to hear and determine the Proceeding).

3. Pursuant to section 594(1) of the Fair Work Act 2009, an order prohibiting the disclosure and publication of the following to any third party (including that measures be taken so that third party access to the Commission's file for the Proceeding is prohibited):

•  any witness statements, other evidence and submissions (including oral evidence and submissions) filed by Westpac in its case after the date of this Application which contain or refer to the Protected Information; and

•  any reasons of the Commission that refer to any information referred to in paragraph 3(a).

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

•  all of the hearing be held in private; and

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

5. 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.

6. Liberty to apply.

[34] In support of its application, Westpac stated that it is prohibited from:

•  disclosing the legal and/or factual basis for the termination of the Ms Devine’s employment,

•  identifying the regulator,

•  identifying the relevant legislation and

•  providing any documentary information provided to or received from the regulator,

and that the above prohibitions continue.

[35] It was submitted that orders in the above form are only necessary if the regulator grants the exemption. As such, if the orders were made, they would need to be conditional upon the regulator granting the exemption sought. If the orders are made, the witness statements and submissions will contain evidence as to the factual basis and reasons for the dismissal of Ms Devine, together with the legal basis for the prohibition on the disclosure of that information by reference to the governing legislation and the regulator.

[36] It is put by Westpac that its application is to be likened to a public interest immunity claim, where certain information is kept confidential in the public interest, except that the nature of the public interest cannot be disclosed until the confidentiality orders are made. 7

[37] Ms Devine opposes the orders being made on the basis that the effect of the orders would be that she would:

•  not be entitled to be present by herself or with her representatives while Westpac makes its submissions;

•  not be privy to the substance of the case put against her, including the reason she was dismissed; and

•  should Westpac be successful in arguing that her dismissal was not unfair, Ms Devine would be unaware as to the reasons this conclusion was reached by the Commission.

[38] It is put on behalf of Ms Devine that what is proposed by Westpac, if successful, would result in a hearing conducted in a manner which deliberately and entirely denies her procedural fairness.

[39] Westpac’s application is made under ss.593(3) and 594(1) of the Act which are set out below:

“Confidential evidence in hearings

593(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.

Confidential evidence

594(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.”

[40] It is clear from the above provisions of the Act that the Commission has a wide discretion in relation to the making of confidentiality and non-publication orders in relation to hearings where it is satisfied that it is desirable to do so because of the confidential nature of any evidence, or for any other reason.

[41] The Commission accepts that it is highly likely, or in words of Westpac ‘almost certain’ that it will be unable to defend the unfair dismissal application if the Commission does not make the confidentiality and non-publication orders and the regulator does not grant the exemption.

[42] Applications for confidentiality orders restricting publication of reasons for decision, and disclosure of names/addresses of parties/witnesses and evidence are from time to time granted by the Commission upon being satisfied that it is desirable to do so because of the confidential nature of the evidence, or for some other reason.

[43] While there is no legal obligation for an employer to provide a reason when dismissing an employee, it is a significant consideration where the Commission is required to determine whether a dismissal is unfair having regard to the criteria under s.387 of the Act. The question to be answered by the Commission is not limited to the employer’s legal right to dismiss, but whether that right has been exercised unfairly. 8

[44] In Western Suburbs District Ambulance Committee v Tipping 9 an employee had been dismissed pursuant to the award without any reason being given. In the majority decision their Honours stated:

“We agree that an employer may refuse to give any reason for dismissing his employee, unless there is some award provision to the contrary, but if an application for reinstatement is made then evidence may be adduced in support of the application, which is sufficient to establish a prima facie case of harshness and thus call for further enquiry.”

[45] It is further not unusual that an employer may not provide an employee with the true reason for their dismissal on the basis that the employer is of the belief it would not be safe to do so at the time of employee’s dismissal.

[46] While Westpac has cited a number of authorities in respect of the granting of confidentiality orders under the Act, no authority is cited where confidentiality orders have extended to excluding an applicant from being advised of the fundamental reason upon which their application proceeds. As Westpac acknowledges, confidentiality orders are usually directed to the non-publication of material to third parties rather than non-publication to either the applicant or the respondent.

[47] To say the least, this application is unusual, if not unprecedented, where the result would be if the orders were made, Ms Devine’s unfair dismissal application would be heard in the absence of her being made aware of the reasons for her dismissal and those reasons only being conveyed to the Commission member who would be required to make a decision in the absence of any contrary argument concerning the reasons for dismissal.

[48] The Commission accepts that Westpac is acting on the basis that it is precluded from revealing the reasons for Ms Devine’s dismissal on legal grounds without authority from the regulator, which is unable to be named. However, this leaves the applicant and the Commission without the ability to conduct any forensic analysis of the merits of Westpac’s position on the law.

[49] I note for example that the Australian Transaction Reports and Analysis Centre (AUSTRAC) is the Australian Government agency responsible for detecting, deterring and disrupting criminal abuse of the financial system to protect the community from serious and organised crime and that the Anti Money Laundering and Counter-Terrorism Financing Act 2006 contains provisions relating to the disclosure of AUSTRAC information. The Australian Prudential Regulation Authority (APRA) is also an independent statutory authority that supervises banking institutions and other institutions.

[50] The position advanced by Westpac is that the relevant regulator cannot be identified and the reasons for dismissal cannot be advised to Ms Devine without the relevant regulator providing an exemption to do so, which will only be considered by the unnamed regulator should the Commission grant the confidentiality and non-publication orders as sought.

[51] Even accepting that legislation surrounding the relevant regulator (whomever it may be) results in the position Westpac puts, the position is far from satisfactory as the Commission is a tribunal required to act judicially and accord all parties procedural fairness. 10

[52] Westpac acknowledges that the effect of the orders sought is that Ms Devine will be precluded from knowing the contents of the material presented to the Commission and she will not have the opportunity to challenge what is put by Westpac through the normal course of cross-examination and submissions which raises fundamental issues of procedural fairness. 11

[53] Westpac has submitted that the interests of fairness and justice dictate that the Commission at least see the material which contains the Protected Information as the Commission could not give proper consideration to its application without seeing the material. Having done so, the Commission could vary or revoke the confidentiality orders made, subject to providing the regulator with 21 days’ notice to make whatever application it may wish to make. 12

[54] This, in my view, is not a proper course to adopt on the basis that such orders should only issue where the Commission is satisfied that it is appropriate to do so on the material presented which excludes speculation that once issued the Protected Information provided will substantiate the merits of the orders, and secondly, it will fail to alleviate the grave absence of procedural fairness being provided to Ms Devine.

[55] A fundamental principle of natural justice is that no person should be condemned unheard or that both sides must be heard before passing any order. 13 The right to a fair hearing requires that individuals are not penalized by decisions affecting their rights or legitimate expectations unless they have been given prior notice of the cases against them, a fair opportunity to answer them, and the opportunity to present their own cases.14

[56] As stated in the joint judgement of the High Court in R v Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group (1969) 15 (Angliss) a tribunal such as the Commission acting judicially must ensure that the principles of natural justice are applied:

“Nor can there be any doubt that members of that Commission (the Commonwealth Conciliation and Arbitration Commission) under the Act are bound to act in a judicial manner or that the common law principles of natural justice are applicable to the Commission and its members in relation to such hearings.” 16

[57] The High Court went on to state that it must be borne in mind that these principles are not to be found in a fixed body of rules applicable inflexibly at all times and in all circumstances and that the requirements must depend on the circumstances of the case, referring to the observations of Tucker L.J. in Russel v Duke of Norfolk. 17:

“The requirements of natural justice must depend on the circumstances of the case, the nature of the inquiry, the rules under which the tribunal is acting, the subject matter that is being dealt with, and so forth.”

[58] Ms Devine is not an intervener or an interested party that may otherwise allow a less rigorous or more flexible application of the rules of natural justice referred to by the High Court in Angliss. Ms Devine is the applicant who seeks to prosecute her case and could not possibly be provided with every opportunity to do so where the Commission is appraised of the reasons for her dismissal, but not Ms Devine herself.

[59] There is no part of the Act relating to an unfair dismissal application that indicates an intention to exclude the common law rules of natural justice which if so, must be stated clearly and unequivocally. 18 The reference at s.381 Object of this Part under Part 3-2 Unfair Dismissal to established procedures of the Commission being intended to ensure both the employer and employee are accorded ‘a fair go all round’ only reinforces the obligation on the Commission that it needs to ensure natural justice is afforded to both parties.

[60] As the High Court in Stead v State Government Insurance Commission (1986) 19 stated, not every breach or departure from the rules of natural justice will affect the making of a decision. However, the High Court expressed the view that where the denial of natural justice affects the entitlement of a party to make submissions on an issue of fact, it is difficult to conclude that compliance with the requirements of natural justice would have made no difference.

[61] This is a case where on the orders sought by Westpac, the applicant will be deprived of an opportunity to respond to the essential issues relating to her termination of employment and thus whether her dismissal was unfair.

[62] It is a curious scenario where a 63 year old employee with nine years of service submits that she has no insight as to why she was dismissed and the employer, on the other hand, states the reasons are so egregious they are prevented by legislation, which cannot be identified without an exemption from a regulator that cannot be identified, in revealing the reasons for her dismissal, other than it had cause to question Ms Devine’s integrity and has lost trust and confidence in her as an employee.

[63] Westpac also accepts that it was unable to apply the applicable Enterprise Agreement terms relating to procedural fairness and it is noted that Westpac has not, prior to Ms Devine’s dismissal, invoked the ability to suspend Ms Devine as provided at clause 44.2 of the Enterprise Agreement where allegations include dishonesty, fraud or misconduct.

[64] The Commission is sympathetic to the predicament faced by Westpac concerning matters said to be outside of its control. For this reason, and on the application of Westpac, the Commission has put back the hearing date twice from December 2020 to February 2021 and then to April 202l to provide Westpac with more time to prepare its defence and to await advice from the ‘regulator’.

[65] While the Commission is satisfied that an order prohibiting publication and disclosure to a third party of any witness statements, evidence, submissions and any reasons for decision of the Commission be made, Westpac seeks a more extensive prohibition where the applicant not be made aware of the reasons for her dismissal or any associated submissions, witness statements or other evidence.

[66] The Commission is not able to countenance an unfair dismissal hearing proceeding on the basis that the Commission is apprised of the reasons for dismissal, whereas the employee is confined to presenting their argument without this knowledge. The Commission could not arrive at a sound decision where the applicant employee is unable to reply to the substance of what is put against her.

[67] For the reasons provided above, Westpac’s application for the confidentiality orders in the form sought is declined.

[68] Should Westpac be content with the less oppressive orders referred to in [65] above being made, it should file with chambers amended draft orders.

DEPUTY PRESIDENT

Final written submissions:

Sydney

2021

February 1

Westpac Banking Corporation K Nomchong SC

February 8

Ms Devine L Saunders of Counsel

Printed by authority of the Commonwealth Government Printer

<PR726905>

 1   See 3.2 Form F2; Westpac states that Ms Devine's substantive position was that of Home Finance Manager, see witness statement of A Rodoreda at [9] of 3 November 2020

 2   Outline of submissions 3 November 2020 at [19]

 3   Witness statement of 3 November 2020 at [17-18]

 4   Directions of 24 November 2020

 5   See 2.2 at [2] of application

 6   Westpac written submissions of 1 February 2021 at [18]

 7   Westpac written submissions of 1 February 2021 at [47]

 8   North West Council v Dunn 126 CLR 247 at 263 decision of Walsh J

 9   (1957) A.R. NSW 273

 10   Adrian Tainsh v Toyota Motor Corporation Australia Limited t/a Toyota [2018] FWCFB 7565 at [44-46]

 11   Westpac written submissions of 1 February 2021 at [39]

 12   Ibid at [50]

 13   Known by the Latin maxim audi alteram partem

 14   Halsbury’s Laws of England (4th ed) vol 1, para 74 pp 90-91

 15   122 CLR 546 at 552-553

 16   122 CLR 546 at 552

 17   [1949] 1 All ER 109 at 118, See also Natural Justice in the Australian Industrial Relations Commission; Richard Naughton; Journal of Industrial Relations March 1993 at [3]

 18   Commissioner of Police v Tanos (1958) 98 CLR 383 at 396, see also Annetts v McCann (1990) 170 CLR 596 at 598

 19   161 CLR 141 at 145