Procedural issues

See Fair Work Act ss.593–594

The Fair Work Commission is generally required to perform its functions and exercise its powers in a manner that is open and transparent.[1] However anti-bullying matters may involve disclosure of sensitive personal information (including medical information) and may have the potential for unwarranted damage to the reputation of individuals.

The Commission has the power to make orders

• that all or part of an anti-bullying hearing be held in private,
• restricting the persons who may be present at a hearing,
• prohibiting or restricting the publication of the names and addresses of persons appearing at the hearing, and
• prohibiting or restricting the publication or disclosure of evidence given at the hearing, documents referred to in the proceedings, and the Commission’s decision or reasons in relation to the matter.[2]

Considerations of open justice and the administration of justice are clearly relevant to the exercise of discretion to make an order under s.594(1) of the Fair Work Act. However, these considerations are not to be applied in a vacuum and need to be considered in the context of the express power to prohibit or restrict publication of certain material having regard to its confidential nature or for any other reason and the circumstances of a particular case.[3]

In relation to the anti-bullying jurisdiction established by Part 6-4B of the Fair Work Act, 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, in accordance with the open justice principle, it is not sufficient to justify the making of a non-disclosure order merely because allegations have been made which are embarrassing, distressing or potentially damaging to reputations.[4]

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 such an outcome may reflect adversely 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.[5]

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.[6]

Application for de-identification of parties approved

Application by Worker A, Worker B, Worker C, Worker D and Worker E (interim orders dealing with behaviour at workplace)

PR584404 (Gostencnik DP, 18 August 2016).

PR584235 (Gostencnik DP, 15 August 2016).

[2016] FWC 6524 (Gostencnik DP, 7 October 2016).

Facts

An application for an interim confidentiality order was made by a group of workers at the Carlton and United Breweries (CUB) site in Abbotsford, Victoria. The workers were engaged by Programmed Skilled Workforce Ltd and alleged that they were experiencing unreasonable behaviour as a result of the industrial action taking place at CUB.

The applicants submitted that the publication of their names in dealing with their anti-bullying applications would likely result in an escalation of the behaviour they were experiencing at the workplace, prior to the substantive issues of the anti-bullying application being dealt with.

The applicants had previously sought, and been granted, an interim order which prohibited the persons named from engaging in certain behaviour towards them, including filming the applicants attending work and calling them various inappropriate names.

Outcome

The Deputy President issued the orders sought on the basis that the concerns were genuinely held and the risk that the behaviour would escalate was not merely theoretical. Further, he considered that the ‘interests of open justice must give way to the desirability to mitigate the risk of escalating inappropriate conduct directed towards the applicants’.

Relevance

The capacity of a person to effectively participate in a proceeding before the Commission may be affected, for example, by a well-founded or reasonable concern held by the person that the disclosure and publication of that person’s name or address might result in some form of retribution, harassment or intimidation. In this case the applicants were concerned that if they were identified as applicants there might be an escalation in the conduct about which they had complained directed towards them.

H v Centre and Others

[2014] FWC 6128 (Wilson C, 4 September 2014).

Facts

An application was made by ‘H’ to the Commission for an order to stop bullying which is alleged to have taken place in a workplace conducted by an employer, referred to as the ‘Centre’, which was a corporate entity providing services to the community. The allegations of bullying extended to two named individuals, ‘T’ (a co-worker) and ‘I’ (the Centre’s Director).

Each of the parties had a preference for the proceeding to be dealt with as confidentially as was possible.

Outcome

While there was no automatic entitlement to the hearing being conducted in that way, the Commission was satisfied that it was appropriate to do so on this occasion, taking into account the personal situation both of the applicant and the two individual respondents, ‘I’ and ‘T’.

The Commission did not consider that the preferences of the Centre itself were a sufficient reason to consider confidentiality; nothing special or private arose in that regard in relation to a corporate entity, albeit one that is a community service, so far as these proceedings were concerned.

Consistent with this, the Commission considered it would be appropriate to make an order for confidentiality pursuant to the provisions of s.593(3) of the Fair Work Act, with that order extending to all material and evidence provided in relation to this matter.

Relevance

When determining if a confidentiality order should be issued, the Commission will take into account the personal situation of the party (or parties), however the party (or parties) will need to be able to satisfy the Commission that there is a need for confidentiality orders, it is not enough to simply assert there is a need.

Re G.C.

[2014] FWC 6988 (Hampton C, 9 December 2014).

Facts

G.C. (the applicant) made an application to the Commission for an order to stop bullying. The application alleged bullying conduct by Mr E.S., who was the Managing Director of S.I. Pty Ltd (the employer).

The application was subject to a hearing, which was conducted in private as permitted by s.593(3)(a) of the Fair Work Act. All proceedings conducted to that point were also undertaken in private. At the conclusion of the hearing, all parties supported a position advanced by the employer that the names of all involved should be de-identified from any public decision issued by the Commission.

Outcome

Given the nature of some of the matters and circumstances discussed in this decision, the Commission accepted the joint request of the parties, noting that the genuine public interest in the operation of the Fair Work Act, and this jurisdiction in particular, was still satisfied by the publication of the de-identified decision.

Relevance

Anti-bullying matters may involve disclosure of sensitive personal information (including medical information) and may have the potential for unwarranted damage to the reputation of individuals. When determining if the names of the parties involved should be de-identified from this decision, the Commission considered the principles of open justice and the scheme of the Fair Work Act balanced against the facts of the matter as presented.

Application for de-identification of parties NOT approved

Re Justin Corfield

[2014] FWC 4887 (Bissett C, 21 July 2014).

Facts

The Commission received an application for anti-bullying orders from Mr Justin Corfield (the applicant).

The respondents (the named individual and the employer) made an application that the parties in the matter be de-identified pursuant to s.593(3)(c) of the Fair Work Act. The respondents submitted that the publication of the name of the applicant and respondents in what was essentially a private and confidential matter would not be conducive to good governance of the respondent employer. The respondents submitted that their performance management system (to which the application does, in part, relate) should not be subject to public scrutiny. They argued that the performance management system of the organisation is robust and should continue and if the application for orders was not successful, the integrity of the system may well be compromised and confidence in the organisation adversely affected.

The applicant opposed the application. He said that the names of the parties had already been identified in the daily hearing lists of the Commission on the two days when the matter was previously listed. The applicant said that an application involving allegations of one staff member against another is not unique or unusual in Commission proceedings and that, of itself, did not warrant de-identification. The applicant submitted that the matter was not ‘essentially a private matter’, and that the respondent had not shown that de-identification was necessary ‘in the interests of justice.’

Outcome

Whilst recognising that the Commission had the power to grant the application the Commission was not satisfied that there were sufficient grounds to warrant the application being granted at that time.

Relevance

It is likely that many parties in matters before the Commission would prefer that their details not be made public. The preference of the parties, or that there may be some unwanted scrutiny, is not a basis to conclude that the parties should be de-identified. Embarrassment, distress or damage by publicity is not a sufficient basis to grant an application for de-identification.

Bowker and Others v DP World Melbourne Limited T/A DP World and Others

[2014] FWC 7381 (Gostencnik DP, 21 October 2014).

Fa​​​​​​​cts

Three applicants each applied to the Commission for an order to prevent each of them from being bullied at work. The applications were not joined but were dealt with by the Commission concurrently. The applicants were each employed by DP World Melbourne Limited (DP World) a respondent to each application. The Maritime Union of Australia (MUA) was also a respondent to each application.

The MUA applied for orders under sections 593 and 594 of the Fair Work Act which would have the effect of de-identifying the parties to these proceedings, the workplace and location of the workplace at which bullying conduct was alleged to have occurred, the industry in which the bullying conduct was said to have occurred, the persons against whom bullying allegations were made, and restricting the identification of these persons and places in any decision of the Commission.

The MUA submitted it would be prejudiced if the orders sought were not made and applications were not dealt with in private. It said that the allegations made by the applicants against the MUA and its members were particularly damaging. Furthermore the allegations were particularly prejudicial to the reputation of the individuals named in the allegations, and this was amplified because the industry was a relatively close knit and small industry, and so the consequences for those individuals could be wide reaching and might prejudice future employment prospects.

The applicants opposed the making of an order and said the proceeding should be conducted in open hearing and in the normal way according to the fundamental principle of open justice. They said that the MUA provided no evidence in support of its various grounds.

Out​​​​​​​come

Whilst the Commission had some sympathy with the position in which the MUA found itself, on balance the Commission was not persuaded to make the orders sought for reasons including:

• the risk of prejudice of the kind identified by the MUA was not unique to the circumstances of this case
• the MUA took no steps to seek a de-identification order when the allegations that were threshold matters were determined by a Full Bench, and
• under the rules of the MUA, the fact that the applicants have brought charges against particular members and officers of the MUA would be published.

Relevance

The risk of embarrassment or a risk of some future prejudice, which is common to many applications that proceed before the Commission, do not outweigh the desirability for open justice.

Amie Mac v Bank of Queensland Limited and Others

[2015] FWC 774 (Hatcher VP, 13 February 2015).

Facts

Amie Mac filed an application for orders to stop bullying at work. The application alleged that bullying occurred in the course of Ms Mac’s employment as a lawyer with the Bank of Queensland Limited (BOQ), and identified five persons employed by BOQ as the perpetrators of that bullying (jointly the respondents).

The respondents applied for an order prohibiting the publication of the names of the applicant and the five persons it was alleged had engaged in bullying behaviour.

The respondents submitted that de-identification was appropriate because it would:

• minimise the negative impact that any open proceedings may have on Ms Mac, particularly in relation to her ability to return to work
• minimise the negative impact that any open proceedings may have on the health of Ms Mac
• 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
• minimise unnecessary knowledge of the proceedings amongst BOQ employees, thereby minimising the potential to adversely affect any return to work by Ms Mac.

Outcome

The Commission found 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. There was also no issue of ‘untested’ allegations, because the allegations have been tested at the hearing and were the subject of findings in the decision.

The Commission did not consider there to be any proper basis for the making of the de-identification orders sought by the respondents and rejected their application.

Relevance

The principle of open justice will usually be the paramount consideration in determining whether a confidentiality order should be made. 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.

See Fair Work Act ss.589 and 789FF

In some circumstances, parties to anti-bullying matters may seek to have certain preliminary issues dealt with prior to the substantive matters of issuing an order to stop bullying being determined. The range of matters that these types of orders can address will vary, depending on the issues at hand in a particular case. Decisions in respect of interim orders have addressed issues such as:

•  stopping recruitment processes which would otherwise render the applicant worker without ongoing employment and therefore an ongoing risk to their health and safety[7]
• stopping performance management processes where the applicant is unable to participate due to ill health[8], and
• stopping certain behaviours at a workplace.[9]

Application for an interim order to suspend a disciplinary process – interim order granted

Application by Bayly

[2017] FWC 1886 (Hampton C, 5 April 2017).

Facts

In this matter the Commission considered whether to issue an interim order to halt a disciplinary process which may have resulted in the applicant’s employment being terminated. The applicant had evidence to show that on medical grounds she was unable to participate in or provide a response to the disciplinary process which had a real prospect of resulting in her dismissal.

Outcome

The Commissioner issued the interim order sought, noting:

‘I would also observe that given the scheme of the Act, interim orders of the nature being considered here would not be issued lightly. The direct intervention of the Commission at such an early stage of proceedings should be exercised with considerable caution. Further, the mere indication that a disciplinary process was involved in the complaints of workplace bullying, without much more, is unlikely to trigger the balance of convenience necessary for such action. Of course, each application must be considered in its own right and circumstances.’

Relevance

In this case the Commission was satisfied that the anti-bullying application had prima facie merit. There was a sufficient likelihood of success to justify the interim order to suspend a disciplinary process which may have resulted in the applicant’s dismissal. If the applicant was dismissed then her anti-bullying application would have to fail as there would be no risk of further workplace bullying.

Application for an interim order to delay recruitment process – interim order NOT granted

Application by Subramanian

[2017] FWC 3492 (Hunt C, 7 July 2017).

Facts

In this matter, the Commission considered a request for an interim order to prevent the employer from finalising a recruitment process in which the applicant had participated. The process would have guaranteed that the applicant would have employment with the employer past 31 December 2017. The applicant contended that the process was:

• flawed, as the recruitment panel had two participants who were aware of an inquiry being conducted about the applicant, which formed the substantive part of his anti-bullying application, and
• the applicant’s anti-bullying application would be ‘extinguished’ after 31 December 2017 as he would not have ongoing employment with the employer and would, therefore, no longer be at risk of bullying behaviour continuing.

Outcome

The Commission did not issue the interim order sought, noting that the process for recruiting the new role that the applicant had applied for appeared sound, and that the status quo would not be preserved as the applicant would still be engaged at the workplace when the substantive matter was heard.

​​​​​​​​​​​​​​Relevance

An interim order preventing the employer from offering the disputed role to another person would result in a severe and unnecessary restriction on the employer without affecting the applicant’s rights relevant to the anti-bullying application.

Some parties, during the process of dealing with the anti-bullying application, may come to an agreement about how they will work together in a workplace. Providing the parties also agree that the circumstances required by the Fair Work Act for making such an order have been met, an order giving effect to this agreement may be made by the Commission, called a consent order

Consent order issued – setting out parameters for behaviour

Application by Kypuros

[2017] FWC 3082 (Wilson C, 6 June 2017).

Facts

The applicant in this matter had alleged workplace bullying directed towards him within his workplace. The alleged bullying, largely repeated verbal abuse, was said to be from his uncle who was a co-owner of the business with the applicant’s father.

CCTV footage submitted, untested in evidence, appeared to show at least two acts of violence by the applicant directed at his uncle. The applicant also provided video footage to the Commission, again untested in evidence, of another physical altercation.

An interim intervention order was sought by the uncle and the Magistrates’ Court issued the order against the applicant. The intervention order appeared to be ineffectual in keeping the two men apart and maintaining workplace civility, with altercations between the two men occurring after the intervention order was made.

Outcome

The Commission issued consent orders, which had been developed in a conciliation conference. The Commission detailed the events leading up to the applicant making an application for an order to stop bullying, which found that both the applicant and his uncle appeared to be engaging in verbal and physical abuse.

The Commission considered that the conduct engaged in by the uncle against the applicant could fall within the definition of workplace bullying. Likewise, the Commission also considered the same could be said of the conduct alleged by the uncle to have been directed toward him by the applicant.

Relevance

The decision to issue consent orders reflected the need to formalise a process so that the parties involved could work together in an appropriate manner and provide a professional working environment for all of the employees. The consent order set out parameters for interaction between the applicant, his uncle and his father within the workplace, whether directly or through other workers.