1
Fair Work Act 2009
s.394—Unfair dismissal
Jeremy Butler
v
Respondent
(U2015/9044)
DEPUTY PRESIDENT KOVACIC CANBERRA, 30 NOVEMBER 2015
Application for relief from unfair dismissal.
[1] This decision concerns an application by the Respondent in this matter for orders that
the hearing of the matter be conducted in private and for the suppression of the name of a
school, the identity of the Respondent and the location of the Respondent’s workplace.
[2] By way of background, the matter concerns an application made by Mr Butler under
s.394 of the Fair Work Act 2009 (the Act) alleging that his dismissal by the Respondent was
unfair. The application was received by the Fair Work Commission (the Commission) on 3
July 2015 and has been the subject of a conciliation convened by the Commission. More
recently, the application has been listed for hearing of the substantive application in
December 2015.
[3] Mr Butler contends in his application that one of the reasons for his dismissal was the
culmination of tension between the Respondent and himself stemming from the fact that he
made a whistleblowing complaint to the ACT Education Directorate and others regarding the
existence of a cage like structure in the Autism Unit at the school where the Respondent is
located. The Respondent disputes this contention.
The Application and Views of the Parties
[4] On 19 November 2015 the Respondent made an application (the Application) seeking
the following Orders:
1. That all of the hearing/s in this matter be held in private pursuant to s.593(3)(a) of the
Fair Work Act 2009 (the Act);
2. That the publication of the following documents lodged with the FWC or received in
evidence by the FWC in relation to this matter be prohibited pursuant to s.594(1)(c):
(a) any document that may, directly or indirectly, identify the child who was
placed in a cage-like structure at an ACT primary school, including the name
of the school where the cage-like structure was erected, the name of the
Respondent, and the location of the Respondent’s workplace.
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DECISION
E AUSTRALIA FairWork Commission
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3. That the following matters be prohibited or restricted from publication in any reasons
or decision of the Commission pursuant to s 594(1)(d) of the Act:
(a) any information that may, directly or indirectly, identify the child who was
placed in a cage-like structure at an ACT primary school, including the name
of the school where the cage-like structure was erected, the name of the
Respondent, and the location of the Respondent’s workplace.
[5] In the Application the Respondent states that its primary consideration in seeking the
Orders is the protection of the emotional well-being and future development of a vulnerable
individual within the ACT education system. More particularly, the Respondent requested
that the hearing be conducted in private so that any evidence given or submissions made by
Mr Butler in the course of the hearing do not disclose the identity of the child to any parties
observing the proceedings. The Respondent further stated that it was necessary to suppress:
the name of the school as the Autism Unit within the school only services a small
number of students (less than a handful) and should the name of the school be
disclosed the identity of the child could easily be ascertained; and
the name of the Respondent and the location of the Respondent’s business as their
publication will by implication clearly disclose the school concerned which will allow
the student’s identity to be easily ascertained.
[6] The Application was listed for hearing on 30 November 2015. At the hearing, the
Respondent submitted that, in addition to the reasons cited in its application, the Orders
sought should be granted as the issue of the cage does not involve any liability on the part of
the Respondent.
[7] Mr Butler opposed all of the Orders sought, indicating that he would like to proceed
with an open hearing. In support of that approach Mr Butler pointed out that the cage
represented only a small portion of his unfair dismissal case and that while the name of the
school had not been mentioned in media reports, the identity of the school was commonly
known. No evidence was led to support the latter contention. Finally, Mr Butler contended
that the Respondent’s application was not underpinned by concern for the student but rather
by some other unspecified motive.
The Relevant Statutory Provisions
[8] The relevant statutory provisions are ss.593 and 594 of the Act which provide:
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
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(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.
(2) Subsection (1) does not apply to the publication of a submission made to the
FWC for consideration in an annual wage review (see subsection 289(2)).
Consideration of the Issues
[9] It was not disputed that the Commission has the capacity to make the Orders sought.
However, the issue is whether doing so would be contrary to the principle of open justice.
[10] The principle of open justice was summarised in the NSW Supreme Court decision
(Pembroke J) in Seven Network (Operations) Limited & Ors v James Warburton (No 1)
(Seven Network)1 as follows:
“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
1 [2011] NSWSC 385
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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.”
[11] Vice President Hatcher at paragraph [7] of his decision in Amie Mack v Bank of
Queensland Limited; Michelle Locke; Matthew Thompson; Stacey Hester; Christine Van Den
Huevel; Jane Newman (BOQ)2 drew on Justice Pembroke’s comments in Seven Network
regarding the principle of open justice and stated that:,
“I consider that the passage is equally applicable to a tribunal such as this Commission
which conducts its processes in a quasi-judicial fashion.”
[12] I agree with the Vice President and adopt the principle as outlined in Seven Network.
[13] In this case it was submitted by the Respondent that conducting the hearing in public
carried with it the risk of indirectly and/or unintentionally enabling the identification of the
identity of the student involved in the incident by identifying the school.
[14] Other relevant considerations are that:
neither the student nor his/her primary school are parties to this matter;
the identity of the school involved in the incident does not appear to have been
hitherto publicly reported, including in either ACT Legislative Assembly proceedings
or the media;
the actions of the school or the student do not go to whether or not Mr Butler was
unfairly dismissed.
[15] As noted by Justice Pembroke in the decision in Seven Network “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” (underlining added). In this case I am satisfied that identification of the Respondent
and the location of the Respondent carries with it a significant risk that the school and, more
importantly, the student, will be open to identification. Drawing on the language in Seven
Network, this carries with it the possibility that the student’s interests will be unfairly
damaged as a result. In my view, the identification of the Respondent and the school cannot
be separated in such a way as to guarantee the protection of the student’s interests. Were it
possible to do so, I would be reluctant to make the Orders sought.
2 [2015] FWC 774
[2015] FWC 8277
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[16] Finally, I would note that making the Orders sought by the Respondent in no way
inhibits the manner in which Mr Butler presents his case or the material which he relies upon.
Again, drawing on the language in Seven Network, granting the Orders sought will not
“frustrate the administration of justice.”
[17] For all these reasons, I am satisfied that it is appropriate to make the Orders sought by
the Respondent. The Orders will be issued in conjunction with this decision.
Appearances:
J. Butler for the Applicant.
T. Chase for the Respondent.
Hearing details:
2015.
Canberra:
November 30.
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Price code C, PR574551
THE FAIR WORK COMMISSION AUSTRALIA. DEPUNPRESIDENT SEAL THE
