DECISION

Fair Work Act 2009
s 789FC - Application for an order to stop bullying

Kelly Walker (No. 2)
(AB2018/160)

Application for an FWC order to stop bullying – interlocutory decision – whether to admit secretly obtained recording of a meeting with Management into evidence - discretion of Commission – allegations of breaches of various Commonwealth and State laws – witness evidence preferred – evidence sought to be admitted after close of evidentiary case – prejudice to respondents – no reason why credibility of three witnesses will not establish the truth – desirability of admitting secret recording outweighed by undesirability of admitting it – application to admit evidence dismissed.

[1] This decision will determine the second, and related interlocutory application in the lead-up to the resumption of substantive proceedings in a Stop Bullying application filed by Ms Kelly Walker, pursuant to s 789FC of the Fair Work Act 2009 (the ‘FW Act’), in respect to her employment with the Hunter Pain Clinic (or the ‘Clinic’) in Newcastle, New South Wales, one of three named respondents in the proceedings. The proceedings will resume for the continuation of the respondent’s evidence on 22 and 23 July 2019 at the Newcastle Branch of the Fair Work Commission.

[2] The first decision, Application by Kelly Walker [2019] FWC 4557, dealt with a number of orders for production as a result of the applicant’s request on 22 May 2019, to tender a secretly obtained recording of a meeting she attended with Dr Marc Russo (also a named respondent) and Ms Bronwyn Harris, on 27 March 2018. When this request was made by the applicant’s support person, Mr David James, in the proceedings, the tender of the recording was opposed by Ms Corrina Dowling, Solicitor, Barry Nilsson Lawyers for the respondents, on a number of grounds, including that the recording had been illegally obtained under the Surveillance Devices Act 2007 (NSW) (the ‘SD Act’). The Commission thereupon issued directions for the filing and service of submissions as to whether it should admit the secret recording into the evidence. Those directions have now been complied with, and I propose to issue a decision based on the parties’ submissions, which I will summarise shortly.

Relevant statutory provisions

[3] Both parties referred to and relied on various provisions of the FW Act, the SD Act, the Evidence Act 1995 (NSW) (the ‘Evidence Act’), the Corporations Act 2001 (Cth) (the ‘Corporations Act’) and the Workplace Surveillance Act 2005 (NSW) (the ‘WS Act’). I set out the relevant sections below:

[4] Section 7 of the SD Act provides as follows:

‘7 Prohibition on installation, use and maintenance of listening devices

(1) A person must not knowingly install, use or cause to be used or maintain a listening device:

(a) to overhear, record, monitor or listen to a private conversation to which the person is not a party, or

(b) to record a private conversation to which the person is a party.

Maximum penalty: 500 penalty units (in the case of a corporation) or 100 penalty units or 5 years imprisonment, or both (in any other case).

(2) Subsection (1) does not apply to the following:

(a) the installation, use or maintenance of a listening device in accordance with a warrant, emergency authorisation, corresponding warrant or corresponding emergency authorisation,

(b) the installation, use or maintenance of a listening device in accordance with the Telecommunications (Interception and Access) Act 1979, or any other law, of the Commonwealth,

(c) the unintentional hearing of a private conversation by means of a listening device,

(d) the use of a listening device to record a refusal to consent to the recording of an interview by a member of the NSW Police Force in connection with the commission of an offence by a person suspected of having committed the offence,

(e) the use of a listening device and any enhancement equipment in relation to the device solely for the purposes of the location and retrieval of the device or equipment.

(3) Subsection (1) (b) does not apply to the use of a listening device by a party to a private conversation if:

(a) all of the principal parties to the conversation consent, expressly or impliedly, to the listening device being so used, or

(b) a principal party to the conversation consents to the listening device being so used and the recording of the conversation:

(i) is reasonably necessary for the protection of the lawful interests of that principal party, or

(ii) is not made for the purpose of communicating or publishing the conversation, or a report of the conversation, to persons who are not parties to the conversation.

(4) Subsection (1) does not apply to the use of a listening device to record, monitor or listen to a private conversation if:

(a) a law enforcement officer is a party to the private conversation, and

(b) the law enforcement officer is a participant (within the meaning of the Law Enforcement (Controlled Operations) Act 1997) in an authorised operation (within the meaning of that Act) who is using an assumed name or assumed identity.’

[5] The exception to the prohibition in sub-s 7(1)(b) of the SD Act is found at s 7(3)(b) as follows:

‘(3) Subsection (1) (b) does not apply to the use of a listening device by a party to a private conversation if:

…

(b) a principal party to the conversation consents to the listening device being so used and the recording of the conversation:

(i) is reasonably necessary for the protection of the lawful interests of that principal party, or

(ii) is not made for the purpose of communicating or publishing the conversation, or a report of the conversation, to persons who are not parties to the conversation.’

[6] Sections 590 and 591 of the FW Act provides as follows:

‘590 Powers of the FWC to inform itself

(1) The FWC may, except as provided by this Act, inform itself in relation to any matter before it in such manner as it considers appropriate.

(2) Without limiting subsection (1), the FWC may inform itself in the following ways:

(a) by requiring a person to attend before the FWC;

(b) by inviting, subject to any terms and conditions determined by the FWC, oral or written submissions;

(b) by requiring a person to provide copies of documents or records, or to provide any other information to the FWC;

(d) by taking evidence under oath or affirmation in accordance with the regulations (if any);

(e) by requiring an FWC Member, a Full Bench or an Expert Panel to prepare a report;

(f) by conducting inquiries;

(g) by undertaking or commissioning research;

(h) by conducting a conference (see section 592);

(i) by holding a hearing (see section 593).

591 FWC not bound by rules of evidence and procedure

The FWC is not bound by the rules of evidence and procedure in relation to a matter before it (whether or not the FFWC holds a hearing in relation to the matter).’

[7] The Evidence Act relevantly provides at s 138:

‘138 Exclusion of improperly or illegally obtained evidence

(1) Evidence that was obtained:

(a) improperly or in contravention of an Australian law, or

(b) in consequence of an impropriety or of a contravention of an Australian law,

is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained.

(2) Without limiting subsection (1), evidence of an admission that was made during or in consequence of questioning, and evidence obtained in consequence of the admission, is taken to have been obtained improperly if the person conducting the questioning:

(a) did, or omitted to do, an act in the course of the questioning even though he or she knew or ought reasonably to have known that the act or omission was likely to impair substantially the ability of the person being questioned to respond rationally to the questioning, or

(b) made a false statement in the course of the questioning even though he or she knew or ought reasonably to have known that the statement was false and that making the false statement was likely to cause the person who was being questioned to make an admission.

(3) Without limiting the matters that the court may take into account under subsection (1), it is to take into account:

(a) the probative value of the evidence, and

(b) the importance of the evidence in the proceeding, and

(c) the nature of the relevant offence, cause of action or defence and the nature of the subject-matter of the proceeding, and

(d) the gravity of the impropriety or contravention, and

(e) whether the impropriety or contravention was deliberate or reckless, and

(f) whether the impropriety or contravention was contrary to or inconsistent with a right of a person recognised by the International Covenant on Civil and Political Rights , and

(g) whether any other proceeding (whether or not in a court) has been or is likely to be taken in relation to the impropriety or contravention, and

(h) the difficulty (if any) of obtaining the evidence without impropriety or contravention of an Australian law.’

The WS Act is relied on by the applicant. Its relevant provisions are at Part 2 as follows:

‘Part 2 Notification of workplace surveillance of employees

Note. Surveillance of an employee that does not comply with this Part is covert surveillance (see the definition of covert surveillance). Covert surveillance of an employee is an offence unless the surveillance is authorised by a covert surveillance authority (see Part 4).

9 Application of Part

This Part applies to the surveillance of an employee carried out or caused to be carried out by the employee’s employer while the employee is at work for the employer.

10 Notice of surveillance required

(1) Surveillance of an employee must not commence without prior notice in writing to the employee.

Note. Subsection (6) provides for an exception to the notice requirement.

(2) The notice must be given at least 14 days before the surveillance commences. An employee may agree to a lesser period of notice.

(3) If surveillance of employees at work for an employer has already commenced when an employee is first employed, or is due to commence less than 14 days after an employee is first employed, the notice to that employee must be given before the employee starts work.

(4) The notice must indicate:

(a) the kind of surveillance to be carried out (camera, computer or tracking), and

(b) how the surveillance will be carried out, and

(c) when the surveillance will start, and (d) whether the surveillance will be continuous or intermittent, and

(e) whether the surveillance will be for a specified limited period or ongoing.

(5) Notice by email constitutes notice in writing for the purposes of this section.

(6) Notice to an employee is not required under this section in the case of camera surveillance at a workplace of the employer that is not a usual workplace of the employee.

11 Additional requirements for camera surveillance

Camera surveillance of an employee must not be carried out unless:

(a) cameras used for the surveillance (or camera casings or other equipment that would generally indicate the presence of a camera) are clearly visible in the place where the surveillance is taking place, and

(b) signs notifying people that they may be under surveillance in that place are clearly visible at each entrance to that place.

12 Additional requirements for computer surveillance

Computer surveillance of an employee must not be carried out unless:

(a) the surveillance is carried out in accordance with a policy of the employer on computer surveillance of employees at work, and

(b) the employee has been notified in advance of that policy in such a way that it is reasonable to assume that the employee is aware of and understands the policy

13 Additional requirements for tracking surveillance

Tracking surveillance of an employee that involves the tracking of a vehicle or other thing must not be carried out unless there is a notice clearly visible on the vehicle or other thing indicating that the vehicle or thing is the subject of tracking surveillance.

14 Exemption for certain surveillance by agreement

Surveillance of an employee is taken to comply with the requirements of this Part if the employee (or a body representing a substantial number of employees at the workplace) has agreed to the carrying out of surveillance at the premises or place where the surveillance is taking place for a purpose other than surveillance of employees and the surveillance is carried out in accordance with that agreement.

[8] The applicant claims she is a ‘whistleblower’ for the purposes of the Corporations Act which provides at s 1317AA as follows:

‘1317AA Disclosures qualifying for protection under this Part

(1)  A disclosure of information by a person (the discloser) qualifies for protection under this Part if:

(a)  the discloser is:

(i)  an officer of a company; or

(ii)  an employee of a company; or

(iii)  a person who has a contract for the supply of services or goods to a company; or

(iv)  an employee of a person who has a contract for the supply of services or goods to a company; and

(b)  the disclosure is made to:

(i)  ASIC; or

(ii)  the company’s auditor or a member of an audit team conducting an audit of the company; or

(iii)  a director, secretary or senior manager of the company; or

(iv)  a person authorised by the company to receive disclosures of that kind; and

(c)  the discloser informs the person to whom the disclosure is made of the discloser’s name before making the disclosure; and

(d)  the discloser has reasonable grounds to suspect that the information indicates that:

(i)  the company has, or may have, contravened a provision of the Corporations legislation; or

(ii)  an officer or employee of the company has, or may have, contravened a provision of the Corporations legislation; and

(e)  the discloser makes the disclosure in good faith.

Note: Under section 1405, the reference to a provision of the Corporations legislation includes a reference to a corresponding provision of the old corporations legislation of the States and Territories.

(2)  A reference in subsection (1) to a person contravening a provision of the Corporations legislation includes a reference to a person committing an offence against, or based on, a provision of this Act.

Note: This subsection causes section 11.6 of the Criminal Code to operate in relation to such references.

[9] Section 1313AC of the Corporations Act deals with the protection of a ‘whistleblower’ from victimisation. It reads:

‘1317AC Victimisation prohibited

Actually causing detriment to another person

(1)  A person (the first person) contravenes this subsection if:

(a)  the first person engages in conduct; and

(b)  the first person’s conduct causes any detriment to another person (the second person); and

(c)  the first person intends that his or her conduct cause detriment to the second person; and

(d)  the first person engages in his or her conduct because the second person or a third person made a disclosure that qualifies for protection under this Part.

Threatening to cause detriment to another person

(2)  A person (the first person) contravenes this subsection if:

(a)  the first person makes to another person (the second person) a threat to cause any detriment to the second person or to a third person; and

(b)  the first person:

(i)  intends the second person to fear that the threat will be carried out; or

(ii)  is reckless as to causing the second person to fear that the threat will be carried out; and

(c)  the first person makes the threat because a person:

(i)  makes a disclosure that qualifies for protection under this Part; or

(ii)  may make a disclosure that would qualify for protection under this Part.

Officers and employees involved in contravention

(3)  If a company contravenes subsection (1) or (2), any officer or employee of the company who is involved in that contravention contravenes this subsection.

Threats

(4)  For the purposes of subsection (2), a threat may be:

(a)  express or implied; or

(b)  conditional or unconditional.

(5)  In a prosecution for an offence against subsection (2), it is not necessary to prove that the person threatened actually feared that the threat would be carried out.

[10] Also relevant is the applicant’s contract of employment dated 16 September 2016 dealing with ‘Confidential Information’ at clause 9. It states:

‘9.1 In this Agreement, unless the context otherwise requires:

“Confidential Information” includes all information of a confidential nature regarding the past, current or future business interests, methodology or affairs of any person or entity with which the Employee may deal or be concerned with, including but not limited, to matters of a technical nature, trade secrets, marketing procedures, financial information, wages / salary information, customer / client lists, and any other information which becomes known to the Employee during their employment (whether or not the confidential information is acquired by the Employee in the course of their employment).

9.2 During his or her employment, the Employee must not be employed by another business that competes with the business of the Employer.

9.3 The Employee must not, except as required by law in the proper course of his or her duties, disclose, divulge, communicate or otherwise place at the disposal of any third party in any form or by any means and keep in the strictest confidence any confidential information acquired during their employment (whether or not the confidential information is acquired by the Employee in the course of their employment).

9.4 All notes of a confidential nature which the Employee acquires or makes during the employment are the property of the Employer, and when the employment ends (or at any time prior to the ending of the employment) the Employee must immediately deliver all confidential information to the Employer.

9.5 The Employee must not, except as required by law disclose, divulge, communicate to or otherwise place at the disposal of any third party or make personal use of any of the Employer’s confidential information after the cessation of the employment.’

SUBMISSIONS

[11] The applicant seeks the admission of the secret recording of the meeting on 27 March 2018:

‘A) To further prove the respondents’ conduct and failure in providing “Primary Duty of Care” and protection of the applicant as defined in NSW Work Health and Safety Act 2011 No 10 Division 2, Primary Duty of Care.

B) To further prove that the applicant has been bullied as defined under the S789FD of the Fair Work Act 2009.

C) To prove the evidence put forward by the respondents is compromised.

D) To obtain orders and directions that the Commission deems appropriate to allow the applicant to return to her employment without fear of ongoing bullying.’

[12] The applicant set out the background to her substantive matter and a description of what constitutes bullying in the context of the 39 allegations of bullying she has identified against the Clinic, Dr Russo and Ms Kay Gray (the Director of Business at the Clinic). The applicant referred to the evidence of the respondents’ witnesses, Ms Louise Von Sanden, Ms Gray and Ms Padma Penamasta, to demonstrate she was regarded as a good worker. She then claimed they gave misleading, deceptive and untruthful evidence and colluded to protect Dr Russo and the alleged ‘bully’ (Ms Gray) to save their own jobs. She relied on some non-specific general observations in the literature to suggest that witness accounts of bullying ‘may be unreliable’, because they will often take the perpetrator’s side in fear of being bullied themselves. Witnesses may refuse to give any evidence or tailor their testimony to protect their own position; see: SB [2014] FWC 2104 (‘SB’) and The Applicant v General Manager and Company C [2014] FWC 3940.

[13] The applicant submitted that the culture of the Team and the leaders (namely Ms Gray and Dr Russo) and the evidence of the Team members should be treated with some caution. The applicant put that while the secret recording by an employee of conversations with the employee might raise questions of the trust and confidence in the relationship, each case will turn on its own facts; see: Wintle v RUC Cementation Mining Contractors Pty Ltd (No. 3) [2013] FCCA 694 (‘Wintle’); Buenaobra v Alesi [2018] FWC 4311 (‘Buenaobra’); Cole v PQ Australia Pty Ltd t/a PQ Australia [2016] FWC 1166; Simounds v Aus Water & Gas Pty Ltd [2017] FWC 5595 (‘Simounds’); Moran v KDR Victoria Pty Ltd t/a Yarra Trams [2018] FWC 6144 (‘Yarra Trams’); and Thomas v Newland Food Company Pty Ltd [2013] FWC 8220 (‘Newland Food’).

[14] The applicant also relied on the High Court judgment in Commonwealth Bank of Australia v Barker [2014] HCA 32 (‘Barker’) which determined that there is no implicit term of mutual trust and confidence in employment contracts in Australia. The applicant maintains that the reason she secretly recorded the meeting was in the context of bullying and threats and in order to protect her lawful interests, when her health, safety and job were at risk. It is neither misconduct nor wrongful conduct, which is not prohibited by the employer or her contract of employment. The applicant developed her submissions by relying on the exceptions found in s 7(3)(1) of the SD Act to claim the recordings were created lawfully and within the exceptions.

[15] In the alternative, even if the exception did not apply, the Commission should admit the evidence, pursuant to s 138 of the Evidence Act, given:

•  the probative value of the evidence

•  the importance of the evidence in the proceeding

•  the gravity of the impropriety or contravention

•  whether the impropriety or contravention was deliberate or reckless

•  the difficulty of obtaining the evidence without impropriety or contravention of an Australian law.’

[16] The applicant again referred to the general definition of bullying and its consequences as found in Australian and overseas literature. The applicant said she felt threatened and unsafe and reported her concerns to her psychiatrist, her GP, the Clinic’s Management, staff, ‘Fair Work’, Safe Work, the Police, her family and close friends. The applicant provided a number of examples of her own evidence of what she told other people (Mr Morrison, Dr Regnis, Safe Work, Dr Russo, the Chambers of Deputy President Saunders, the transcript of these proceedings and the Police).

[17] The applicant returned to the uncontested evidence of her work performance and the fact she received a pay rise in 2017, a Christmas bonus and various compliments from Dr Russo. The application rationalised this as demonstrating there was no reason for Ms Gray to manage her, as she was an excellent employee, and Ms Gray was not her direct report. The applicant claimed that the three complaints against her were evidence of collusion, having been reviewed by Ms Gray. It was a ‘total set up’. The applicant also submitted that Ms Gray was illegally surveilling her work computer in breach of the WS Act and this also constitutes bullying and intimidation.

[18] The applicant also alleged that the respondent had breached the Corporations Act by victimising her as a ‘whistleblower’ in relation to reporting fraud, GST breaches and debtor write-offs.

[19] The applicant said that she told a number of people about the secret recordings dating back to 9 April 2018, so the respondents cannot claim to be surprised by them now.

For the respondents

[20] It was submitted that the applicant has still failed to identify how many recordings exist and which meetings were recorded. After setting out the relevant provisions of the SD Act, the respondents put that the applicant’s covert recordings of conversations are in breach of s 7(1)(b) of the SD Act.

[21] In response to the applicant’s claim that she was advised by NSW Police that she had a ‘legal right to record using her mobile phone …’, the respondent provided a statement from Detective Senior Constable Hancock of the NSW Police Force dated 1 July 2019 which reads in full as follows:

‘1. This statement made by me accurately sets out the evidence that I would be prepared, if necessary, to give in court as a witness. This statement is true to the best of my knowledge and belief and I make it knowing that, if it is tendered in evidence, I will be liable to prosecution if I have wilfully stated in it anything that I know to be false, or do not believe to be true.

2. I am 35 years of age.

3. On Tuesday 25 June 2019 I was contacted by Julie Dang from Barry Nilsson Lawyers in relation to a Fair Work Commission application involving Kelly Walker.

4. On 28 February 2018 I met with Kelly Walker at Newcastle Police Station along with Detective Sergeant Faber. During the course of the meeting I advised Kelly Walker she was entitled to make written records of meetings she attended. At no stage was she advised she had the legal right to audio record conversations between parties.

5. I’m fully conversant with the Surveillance Devices Act and breaching this is Act is a criminal offence and I would not advise any persons to commit any offences under this Act.’

[22] Further, the respondents addressed the applicant’s additional claim that Mr Morrison from Fair Work had agreed she should be afraid and he advised her that if this was so, to contact Police via 000. The respondents noted that the applicant relied on an email to support this claim. However, nowhere in this email does Mr Morrison agree with the applicant, give her advice to contact the Police, or cite any reference to any discussion about recording private conversations. From the above, it is apparent the applicant did not act on the advice of NSW Police or the Commission, because no such advice was ever given.

[23] The respondents relied on a decision of Seymour C in which the Commissioner found that the covert recording of a meeting, by a probationary constable was reasonably necessary to protect the employee’s interests, where the meeting related to disciplinary matters; see: Allison v Commissioner of Police [2018] NSWIRComm 1005 (‘Allison’). The respondents submitted that in this case, the meeting on 27 March 2018 was not even a disciplinary meeting or a precursor to a disciplinary meeting. It was a regularly scheduled patient review meeting with a third party in attendance. It was therefore not reasonably necessary for the applicant to record the meeting.

[24] The respondents rejected the submission that the Clinic’s policies did not prevent her from recording the meeting. It was unnecessary to have a policy about conduct which is already prohibited by law, and the respondent had never consented to her doing so. Further, s 7(3)(b)(ii) of the SD Act does not apply, because she had told Ms Harris and Ms Stojanovski she had an intention to rely on the recordings.

[25] The respondents submitted that the admissibility of recordings is a matter for the Commission’s discretion, which may be guided by the interaction of the FW Act and the Evidence Act. Section 591 of the FW Act allows the Commission to inform itself in any manner it sees fit. This might include by reference to the Evidence Act, in particular, s 138; see: Walker v Mittagong Sands Pty Limited t/a Cowra Quartz [2010] FWA 9440.

[26] The respondents submitted that as the only specific meeting identified by the applicant as being sought to be tendered related to the 27 March 2018 meeting, it is difficult to see how this recording can ‘test the veracity of Ms Walker’s 39 allegations against the respondents’. In any event, the meeting in question was attended by a third person (Ms Harris) who has given evidence in the proceedings, and its purpose was to discuss patient files. Even if the meeting was cut short or descended into something else, the applicant would not have known that at the beginning of the meeting.

[27] The respondents submitted that the secret recording should not be admitted into evidence on the basis that:

(a) the desirability of admitting the evidence does not outweigh the undesirability of admitting the evidence having regard to the way in which it was deliberately and deceitfully obtained;

(b) the evidence is not of probative value; and

(c) evidence of the meeting is obtainable, without difficulty, without admitting into evidence Audio Recordings obtained in contravention of the Surveillance Act.

[28] The submission addressed the applicant’s submission that the respondents had been on notice of the recording for 15 months because she had told Ms Harris and Ms Stojanovski. This contact was inappropriate and threatening phone calls from the applicant, in which she only spoke in vague terms about recordings of non-specific conversations. Further, it was incorrect for the applicant to claim that the recordings were raised in her application for a stop bullying order. No such matter was raised. It was not until the applicant’s reply submissions filed on 14 May 2019, which only raised vague, unspecific references to various recordings.

[29] In any event, the tender of the secret recording/s was only sought after the applicant’s case had closed and midway through the respondent’s evidentiary case, after Ms Harris had given evidence of the matter to which the recording allegedly relates. Moreover, the respondent had lost the opportunity for Ms Gray to give any evidence about other recordings, or to cross-examine the applicant about the matter; see: Haslam v Fazche Pty Ltd t/a Integrity New Homes [2013] FWC 5593 and Gadzikwa v Australian Government Department of Human Services [2018] FWC 4878 (‘Gadzikwa’).

[30] The respondent submitted that the authorities relied on by the applicant can be distinguished to the circumstances here. In Wintle, the parties consented to the recording being admitted. It was made inadvertently, and it was central to the claim. Similarly, in Simounds, there were no witnesses to the recorded incidents and the employer did not oppose the tender. In Buenaobra there were no independent witnesses to the alleged conduct. Yarra Trams and Newland Food involved unfair dismissals based on the covert recordings being a valid reason for dismissal. This is not the situation in this case.

[31] The respondent submitted that the applicant was not subject to workplace surveillance, so the WS Act was not relevant. Further, the applicant is not a ‘whistleblower’ and has not made a protected disclosure. In any event, the Corporations Act is irrelevant to these proceedings.

[32] Finally, the respondent quoted the following passage from the applicant’s submission:

‘The current employees are effected by their current employers and have given misleading and deceptive information and not given truthful testimony….staff have colluded to protect the doctor and the bully to keep their jobs safe’.

‘We note that there are 3 complaints made on the same date against Ms Walker. We cite these as collusion and fabrication of false bullying claims against her on the 12/3/18…A total set up. Our submission is that Gray and Russo colluded with other employees to try and bully Ms Walker further…’ (emphasis in original, footnotes omitted)

[33] It was put that these are ‘incredibly serious allegations against co-workers’, which plainly demonstrates a person not wanting to resolve workplace issues; rather, it demonstrates a person who jumps to conclusions and any evidence that does not align with that conclusion is a result of another person/s lying and doctoring the evidence and therefore the person/s have falsified their testimony.

In reply

[34] The applicant’s reply submission was largely a replication of her arguments in her first submission, and I will not repeat these arguments. However, she made the following further submissions.

[35] It was submitted that the applicant’s recordings were taken for the purpose of protecting her lawful interest as a result of the respondent’s stratagems of conduct in direct breach of the following Acts:

‘a) Fair Work Act 2009 inc s.789FA- 789FI.

b) Work Health and Safety Act 2011

c) Work Health and Safety Regulation 2017

d) Workplace Surveillance Act 2005 – Section 12

e) Crimes Act 1900 (NSW)

f) Corporations Act 2001 Part 9.4AAA – Protection for Whistleblowers

g) Corporations Act 2001 Sect 1317AC – Victimisation is prohibited

h) Treasury Laws Amendment (Enhancing Whistleblower Protections) Act 2019

i) Employment Protection Regulation 2017’

[36] In respect to the statement of Detective Sergeant Constable Hancock, the applicant said it was not known what the respondent’s lawyers had told the Police. Further, she had had prior telephone discussions with the Police before their meeting on 28 February 2018. The applicant submitted that Detective Sergeant Constable Hancock was not fully conversant or appropriately advised about the SD Act; nor did she need to tell her that she could take notes of the meeting, as this was common knowledge.

[37] In respect to Mr Morrison’s email, the applicant submitted that his information was abbreviated, but the outcome of the discussion was for her protection, including by contacting the Police. The applicant claimed the decision in Allison is of little relevance as the circumstances are very different to here, where she is a ‘whistleblower’ and has been continually bullied, threatened and then denied a support person. The applicant said the 27 March 2018 meeting was not a patient review meeting and the secret recording would prove it was not.

[38] The applicant insisted that the existence of the recordings was well known to the respondents and potential witnesses. Now that the evidence is compromised, and there is no prejudice to the respondents, the recordings should therefore be admitted. The applicant reiterated that the desirability of the admission of the secret recordings clearly outweighs the undesirability, because they will reveal the undisputable truth. The respondents should therefore not fear the truth and the recording’s admission will determine witness credit.

[39] The applicant submitted that Ms Harris was not an independent witness and her credit is therefore in question. This would be resolved by admitting the secret recording. The applicant reaffirmed that the respondent had breached the WS Act which represented a further example of the bullying of her. It was designed to remove her from her job and because she was a ‘whistleblower’ protected by the Corporations Act and was being ‘victimised’.

CONSIDERATION

[40] While I accept the applicant is not legally represented, there are a number of observations I would make at the outset about certain aspects of her submissions.

[41] Firstly, the applicant relied on a number of decisions in relation to trust and confidence; see: [13] above. All these cases are single member decisions and are authority for no more than that each case will be determined on its own facts and circumstances.

[42] Secondly, the applicant relied on a decision of Hampton C in SB; see [12] above, to demonstrate the unreliability of witness testimony in bullying matters. It is necessary to observe that the application in that matter was dismissed, yet the applicant speculated that had witnesses been called the outcome might have been different. It hardly needs to be said that one cannot rely on a decision, based on what it did not decide and even claim more bizarrely that if something had occurred in the proceedings, a different outcome would have been the result. Put another way, decisions of the Commission are relied on as authority for what they say – not what they don’t say. It makes no sense at all to rely on a decision as authority for an assumption that there would have been a different outcome if evidence had been admitted, but was not.

[43] Thirdly, the applicant relied on the judgment of the High Court in Barker. It is difficult to see how Barker is relevant. The applicant submitted that the judgment in Barker rejected the theorem that Australian employment contracts contain an implied term of mutual trust and confidence. It is not entirely clear how the applicant relies on this judgment, other than referring to Barker in her justification for engaging in covert recording of her employer. In any event, the judgment in Barker does not act as a ‘free pass’ for the applicant to act in any way she sees fit. The applicant’s contract contains unremarkable, express terms (such as the ‘Confidential Information’ clause; see: [10] above) which clearly govern the ‘do’s’ and ‘don’ts’ of permissible behaviour in the employment relationship.

[44] The ratio in Barker primarily considers the well-established principle that implied contractual terms must consider the criterion of ‘necessity’. Gaegler J, citing Jessup J (dissenting in the earlier Federal Court decision of Commonwealth Bank of Australia v Barker (2013) 214 FCR 450), stated that an implied term of mutual trust and confidence has ‘the potential to act as a Trojan horse in the sense of revealing only after the event the specific prohibitions which it imports into the contract’. If anything, the applicant’s reliance on this may be in contradiction to her submissions; Barker recognises that implied terms ‘may be displaced by the express terms of the contract or by statute’ (at [21]) which, amongst other things, prohibits the applicant from engaging in behaviour which may be in breach of the contract of employment. In any event, these matters are not for ultimate determination by the Commission.

[45] Fourthly, the applicant cited the numerous persons, professionals and agencies she had told about her feeling threatened and unsafe. This takes the evidence no further than she told these persons and agencies. It is not evidence of them believing her, let alone agreeing with her (I will come to the statement of Detective Senior Constable Hancock shortly). The truth of the matter will be determined by the Commission in due course, based on all the evidence and its assessment on the balance of probabilities; not on what the complainant perceives to be the truth.

[46] Much of the argument from both parties focused on whether the secret recording of the meeting of 27 March 2018 was obtained unlawfully. This raises the questions of whether the Commission, albeit not bound by the rules of evidence (s 591), should admit the evidence, pursuant to the exception for such evidence, under s 138(3) of the Evidence Act, or alternatively (as the applicant contends), the recording was not obtained illegally because of the exemption under the SD Act, ‘where the recording of the conversation is reasonably necessary for the protection of her lawful interests’. I would note that the law in this area is not uniform across the States.

[47] As to the Commission not being bound by the rules of evidence, this does not mean those rules are irrelevant. In Hail Creek Coal Pty Ltd v Construction, Forestry, Mining and Energy Union (2004) 143 IR 354, the Full Bench said at [48]:

‘48. While the Commission is not bound by the rules of evidence that does not mean that those rules are irrelevant. As the then President of the Industrial Relations Commission of Western Australia said in respect of a similar provisions in the then Industrial Relations Act 1979 (WA):

‘However, this is not a licence to ignore the rules. The rules of evidence provide a method of enquiry formulated to elicit truth and to prevent error. They cannot be set aside in favour of a course of inquiry which necessarily advantages one party and necessarily disadvantages the opposing party (R v War Pensions Entitlement Appeal Tribunal; Ex parte Bott (1933) 50 CLR 228 Evatt J. at 256 (dissenting)). The common law requirement that the Commission must not in its reception of evidence deny natural justice to any of the parties acts as a powerful control over a tribunal which is not bound by the rules of evidence’’ (footnotes omitted)

[48] The question of the admission of illegally obtained evidence in Commission proceedings was recently the subject of extensive exegesis by the Full Bench in Krav Maga Defence Institute Pty Ltd t/a KMDI v Markovitch [2019] FWCFB 4258. It is instructive to refer to the relevant passages of that case as follows:

‘[36] The appellant submitted that the Commissioner proceeded on the basis that if the CCTV footage did not comply with the WS Act (and was therefore obtained unlawfully), it was necessarily or automatically inadmissible; see: [23] and [29] of the Decision. In oral submissions, Mr Moorhouse said that an automatic exclusion approach was an error. There was nothing in the WS Act, the Fair Work Act or any other legislation mandating or requiring such an approach. The correct approach as to whether to exclude the CCTV footage, was a matter of discretion, with reference to s 590 of the Act. Discretion may be guided by the test for the admissibility of evidence, where such evidence is obtained unlawfully, as provided for in the Evidence Act 1995 (Cth) (‘Evidence Act’); notwithstanding that the Commission is obviously not bound by the rules of evidence; see: s 591 of the Act. We note the comments of the Full Bench in Hail Creek Coal Pty Ltd v Construction, Forestry, Mining and Energy Union (2004) 143 IR 354; [2004] AIRC 670 (‘Hail Creek’) at [48]:

‘[48] While the Commission is not bound by the rules of evidence that does not mean that those rules are irrelevant. As the then President of the Industrial Relations Commission of Western Australia said in respect of a similar provisions in the then Industrial Relations Act 1979 (WA):

“However, this is not a licence to ignore the rules. The rules of evidence provide a method of enquiry formulated to elicit truth and to prevent error. They cannot be set aside in favour of a course of inquiry which necessarily advantages one party and necessarily disadvantages the opposing party (R. v War Pensions Entitlement Appeal Tribunal: ex parte Bott [1933] 50 CLR 228 Evatt J. at 256 (dissenting)). The common law requirement that the Commission must not in its reception of evidence deny natural justice to any of the parties acts as a powerful control over a tribunal which is not bound by the rules of evidence.”’ (footnotes omitted)

[37] Counsel put that, in in any event, s 590 of the Act which goes to the Commission being able to inform itself ‘in such manner as it considers appropriate’, does not limit how the Commission may inform itself, and does not prevent the Commission from accepting evidence, which is obtained improperly or unlawfully; see: Hail Creek.

…

[47] It is to be observed that the Commissioner had invited further evidence and submissions on the application and relevance of the WS Act. However, it is not readily discernible that he took into account that he was entitled to inform himself in any manner he saw fit as to the admissibility of the CCTV footage. Having failed to engage with any of the detailed submissions of the appellant, going particularly to the matters relevant to the admission of evidence that was unlawfully obtained, the Commissioner did not have regard to, or sufficient regard to, a material consideration in the exercise of discretion (assuming he undertook that exercise). This was an error of a House v King kind.

[48] We readily acknowledge that the Commission is not necessarily bound to adopt the provisions of s 138(3) of the Evidence Act, when deciding to inform itself in any manner it sees fit. However, we consider that in this case, it was plainly appropriate to do so, even if there was any doubt about the CCTV footage being obtained unlawfully. We observe that the Decision does not disclose any reference to the submissions of the appellant as to s 138(3) of the Evidence Act, or the authorities referred to concerning the admissibility of unlawfully or improperly obtained evidence. Nor was there any reference or discourse as to whether s 590 of the Act operated in such a way as to limit the Commissioner from accepting unlawfully obtained evidence.

…

[50] In Hail Creek the Full Bench said at [56]-[57]:

‘[56] Section 138 of the Evidence Act 1995 (Cth) is relevant to the exercise of our discretion to exclude the challenged material .The proper construction of s 138 was considered by Branson J in Employment Advocate v Williamson. In that case her Honour concluded that the words “improperly” and “impropriety” extend to cover evidence obtained by “unfair” as well as “unlawful” means. Further, her Honour made it clear that s 138 is not limited to evidence obtained by the police or other enforcement organisations.

[57] For completeness we note our acceptance of Hail Creek Coal’s contention that s 109 of the Constitution permits the Commission to receive evidence in a manner that overrides any limitations under State law. We did not exclude the evidence on the basis that we had no jurisdiction to receive it. Rather we excluded it in the exercise of our discretion pursuant to s 110 because it was our view that it would have been unfair to admit the evidence in question.’ (footnotes omitted)

[51] In Parker, Basten JA described it as a two-step process. At [57] His Honour said:

‘The exercise of the discretionary power conferred by this provision involves two steps. The first is to determine whether evidence sought to be adduced was in fact obtained improperly or unlawfully in one of the senses identified in pars (a) and (b). The second step is to consider whether despite that conclusion, the discretionary considerations favour its admission. The importance of giving appropriate weight to the effect of any impropriety or unlawfulness is reflected by means of a qualified proscription – the evidence “is not to be admitted unless”.’

[52] It would seem inescapable that the Commissioner effectively concluded his consideration when he decided the WS Act applied, its terms had been breached and it was therefore inadmissible to accept the CCTV footage and that was the end of the matter. We do not accept that this approach was correct or appropriate.

[53] In our opinion, even if the Commissioner had correctly taken the first step (as described above) he did not undertake the second step and to the extent he did so, he inferentially came to the wrong conclusion, by not having regard for material considerations. This led to error.’

[49] It may be seen from the above passages that firstly, the power to admit evidence, illegally obtained or otherwise, is found in s 590 of the FW Act which permits the Commission to inform itself ‘in such a manner as it considers appropriate’, without limitation. Secondly, the Commission’s decision to admit evidence is a classic exercise of discretion. This is the approach I intend to take in this case.

[50] I would add that the applicant cited a number of single member decisions (including my own) dealing with the admission of unlawfully or potentially unlawfully obtained recordings. While these decisions are instructive, they are not binding on me. Further, the outcomes in these decisions vary. This plainly demonstrates that each case will turn on its own facts and circumstances.
[51] However, in my view, Colman DP explained the reasoning why secret recordings are highly inappropriate and is a practice to be generally eschewed. In Gadzikwa, the Deputy President said at [83]:

‘[83] Unless there is a justification, I consider the secret recording of conversations with co-workers to be highly inappropriate, regardless of whether it may also constitute a criminal offence in the relevant jurisdiction. The reason it is inappropriate is because it is unfair to those who are secretly recorded. They are unaware that a record of their exact words is being made. They have no opportunity to choose their words carefully, be guarded about revealing confidences or sensitive information concerning themselves or others, or to put their best foot forward in presenting an argument or a point of view. The surreptitious recorder, however, can do all of these things, and unfairly put himself at an advantage. Moreover, once it is known that a person has secretly recorded a conversation, this is apt to produce a sense of foreboding in others, an apprehension that they must be cautious and vigilant. This is potentially corrosive of a healthy and productive workplace environment. Generally speaking, the secret recording of conversations with colleagues in the workplace is to be deprecated.’

I agree with the Deputy President’s observations.

[52] It must be stressed that the Commission does not have the jurisdiction to determine whether a secret recording was obtained unlawfully under the SD Act; or, for that matter, whether there has/have been a breach/breaches as alleged by the applicant, of the Corporations Act or the WS Act. These are matters for the Courts of competent jurisdiction.

[53] That said, however, where in the course of its own proceedings the Commission has a reasonable concern that there may have been a breach/breaches of a Commonwealth or State law, the Commission is duty bound to inform the Commission’s General Manager who may initiate the necessary steps to refer such concerns to the appropriate Commonwealth or State law enforcement agencies.

[54] In my opinion, regardless of whether there is any subsequent finding by a Court that there has, or has not been a breach of the SD Act, in the exercise of my discretion, pursuant to s 590 of the FW Act, I refuse to accept the tender of the secret recording of the meeting of 27 March 2018. These are my reasons.

[55] First, and unsurprisingly, the applicant had some difficulty explaining the telling statement of Detective Senior Constable Hancock which is directly at odds with her claim that on 28 February 2018, the Detective Senior Constable had told her that she could secretly tape meetings with Dr Russo. The applicant claimed that ‘DSC Hancock was not fully conversant or appropriately advised about the [SD] Act’ and that she did not need to be told she could take notes of the meeting. I do not know what the point is in mentioning the taking of notes. More importantly, the issue is not Detective Senior Constable Hancock’s alleged lack of knowledge of, or the exemptions contained within the SD Act; rather, the issue is whether the Detective Senior Constable told the applicant she could secretly record the meeting, if she had a concern for her safety.

[56] Putting aside that it is arguable whether a concern for one’s safety fits within the rubric of the definition of it being ‘reasonably necessary for the protection of the lawful interests’ of the applicant, it is plainly apparent, and I accept, that the Detective Senior Constable said no such thing. Moreover, there is an overt and unexplained inconsistency between the applicant’s statement evidence repeated in her first submission and her reply submission. In the former, at para 132 of her original submissions in 2018, the applicant said:

‘132. I became more afraid as Dr Russo was due back to the practice about 1-2pm and I worried he would get very aggressive again. Ian Morrison from Fair Work said that if I am physically or verbally attacked I should call the police, however I felt too worried about losing my job to do that as I need the income.’ (my emphasis)

[57] In the latter, she claimed the opposite – that she met with the Detective Senior Constable who now asserts was not fully conversant with the SD Act and its exemptions. Only one of these submissions can prevail.

[58] In her reply submissions, the applicant claimed that prior to the 28 February 2018 meeting, she had telephone discussions (plural) with the Police. This was the first time this was raised and no evidence was brought to corroborate this claim; certainly, Detective Senior Constable Hancock makes no mention of earlier discussions.

[59] In my opinion, there are a number of issues which flow from the applicant’s changed position. These include:

(a) If the applicant knew more about the terms of the SD Act than the Police, it begs the question why was it necessary for her to seek their advice?

(b) If the applicant had a reasonable concern for her safety in attending a meeting, she had a number of options to alleviate, or even eliminate her concerns such as:

(i) she could have refused to attend;

(ii) if she believed she had been ‘tricked’ as to the purpose of the meeting, she could have walked out;

(iii) she could have sought a deferral of the meeting if its purpose was unclear; or

(iv) she could have insisted on a support person and/or refused to attend without a support person.

(c) It stretches credulity, given my observations of the applicant in the witness box and in the Court generally, that she had a concern for her safety in the meeting, particularly given it was with a well-known Newcastle doctor and employer, Dr Russo, in the presence of a third person in an office in a busy medical clinic with numerous staff and patients who were likely to be close by.

(d) There is no evidence of any earlier incident, comment or inference which could justify the applicant believing she was at risk of some physical harm from Dr Russo; indeed, not one of her 39 incidents of bullying, claim any physical contact or threat of any physical contact by Dr Russo.

(e) For the first time in her reply submissions dated 17 June 2019, the applicant now asserts the Police ‘advised that Ms Walker should make a formal report against Gray & Russo’. There is no evidence to support this assertion and Detective Senior Constable Hancock does not mention it. This is more than likely a further post-reconstructed invention.

(f) If the purpose of the meeting was to discuss patient files (which I accept the applicant disputes), it would have had nothing to do with the applicant protecting her lawful interests. Even if the meeting descended to, or was diverted to other matters, the applicant would not have known that when she decided to record the meeting before it commenced, or at its commencement.

(g) Putting aside the attack on the credibility of the Detective Senior Constable (which I reject unequivocally), I consider, with respect, that any objective observer would take the word of an experienced detective, and with a far greater knowledge of the SD Act, than that of a Report Writer (Medical), with no legal training (as identified in the applicant’s contract of employment).

[60] For these reasons, I accept the statement of Detective Senior Constable Hancock. It follows that the applicant’s claim that she had Police authorisation to secretly record the meeting on 27 March 2018, is false.

[61] This finding also applies to the applicant’s claim of being told by a ‘Fair Work Officer’ (now accepted to be Mr Ian Morrison) that she should be physically afraid of Dr Russo and she should contact Police or 000. There is no evidence that Mr Morrison agreed with what the applicant said she told him. The highest the evidence got was Mr Morrison recording only what the applicant told him, not him agreeing with her; see: email at 11:38am on 22 March 2018. The applicant claimed there is an email to this effect, allegedly missing from the Commission file. This is little more than a ‘red herring’ to divert attention from the factual position by an attempt at recreating history. Moreover, from my knowledge of what Commission staff are trained to say and not say to parties, it is inconceivable that Mr Morrison would have agreed with the applicant’s claims, over the phone or otherwise.

[62] Despite my conclusions above, until I have the totality of the evidence to consider, and particularly the witness evidence of Dr Russo, it would be premature and improper for me to express any concern that there may have been a breach of the SD Act or any other Commonwealth or State law. That may be a matter for another day. I would note, however, that in respect to the applicant’s claims of breaches by the respondents of the Corporations Act, it is curious why the applicant would report her allegations to the very persons she claimed are bullies and who she is frightened of, and not to the relevant agency, ASIC. She claimed she was told by someone that another person had contacted the authorities. However, there is no evidence of that contact and the Clinic has not been advised of any such complaint by any relevant authority.

[63] Second, the applicant’s support person sought to tender the secret recording long after the applicant’s evidentiary case had closed. She obviously had had possession of the recording since 27 March 2018, but failed to include it in her evidence filed on 11 July 2018 according to the Commission’s directions. It would be inappropriate and highly irregular to permit such late evidence at this stage. It would amount to a denial of procedural fairness to the respondents in being effectively ‘ambushed’ and being denied an opportunity to cross-examine the applicant on the secret recording; long after her evidentiary case had closed.

[64] The tender of the secret recording was sought after two of the respondents’ witnesses had been cross-examined and Ms Harris’ cross examination had been adjourned. Ms Harris was one of three persons in the meeting of 27 March 2018 (and has not been named as a respondent to the Stop Bullying application). It is not an acceptable answer, to submit that the secret recording was in response to Ms Harris’ evidence. The applicant already had Ms Harris’ statement signed 23 April 2019, and if any issue had arisen about her evidence it should have been raised in the applicant’s reply evidence. At the very least, the existence of the secret recording should have been raised at the commencement of Ms Harris’ oral evidence, on 22 May 2019. It was not.

[65] In any event, as Ms Harris’ cross examination is not yet finished, there will be an opportunity to question her about her recollection of the meeting. Recalling witnesses (including the applicant) is obviously undesirable and would not ordinarily be permitted, if the reason for doing so was known to the party at the time the person was giving their evidence. That is the position here in respect to the applicant’s possession of the secret recording.

[66] Third, contrary to the applicant’s submission that ‘the admissibility of the recording will test the veracity of the evidence; there is no rule or authority of the Commission that testing the evidence is best done by a secret recording. Indeed, these circumstances are rare. Invariably, the testing of the truth of the evidence, where it is in contest, will be best done by persons giving evidence on oath and for the Commission to make findings of credit. This must be particularly so where it is not a ‘word on word’ conflict, as three persons were in the meeting, two of whom have given evidence, and Dr Russo will do so at the next listing. The Commission is more than capable of making credit findings in these circumstances.

[67] Fourth, it is not entirely clear whether the applicant only seeks to tender the secret recording from the meeting on 27 March 2018, or whether there are other secret recordings which may be ‘dropped in’ at strategic times in the future. From the applicant’s own evidence, there appears to be more than one secret recording. In her reply submissions (and elsewhere), she frequently refers to recordings (in the plural). I agree with Ms Dowling that it is becoming increasingly difficult to manage this case when new evidence is being ‘drip fed’ into the proceedings at inappropriate times and without the respondents being given an opportunity to address new matters. As real issues of procedural unfairness arise in these circumstances, I caution the applicant in seeking to tender further secret recordings, without very good reason.

[68] Given all the circumstances, and in the exercise of my discretion, I am not satisfied that the desirability of admitting the evidence outweighs the undesirability of admitting it. The application to admit the secret recording from the meeting of 27 March 2018 is dismissed.

[69] The substantive proceedings are listed for further hearing at 9:30am, Monday 22 July 2019, in Newcastle.

DEPUTY PRESIDENT

Final written submissions:

For the applicant: 8 July 2019

For the respondents: 1 July 2019

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