Federal Express v Mejias [2005] NSWIRComm 474

Industrial Relations Commission Industrial Relations Commission of New South Wales Industrial Court of New South Wales

Federal Express v Mejias [2005] NSWIRComm 474 CITATION: This decision has been amended. Please see the end of the judgment for a list of the amendments.

APPLICANT Federal Express (Australia) Pty Ltd PARTIES: RESPONDENT Ric Mejias

FILE NUMBER(S): 5240 of 2005

CORAM: Marks J

CATCHWORDS: Contempt proceedings - related unfair dismissal application - orders sought prohibiting the publication of certain materials - respondent's allegations brought in connection with Commission proceedings - contempt proceedings stood over - powers of the Commission to prohibit publication - orders regarding restriction of access to files - costs.

LEGISLATION CITED: Industrial Relations Act 1996

CASES CITED: Harry Day v John Smidmore and ors (No 2) [2005] NSWIRComm 406

HEARING DATES: 12/08/2005

DATE OF JUDGMENT: 12/21/2005

APPLICANT Mr M Kimber SC with Mr T Dixon of counsel Solicitor: Paul Brown LEGAL REPRESENTATIVES: Baker & McKenzie

RESPONDENT Mr R Mejias (in person)

JUDGMENT:

INDUSTRIAL COURT OF NEW SOUTH WALES

CORAM: Marks J Wednesday 21 December 2005

Matter No IRC 5240 of 2005

FEDERAL EXPRESS (AUSTRALIA) PTY LTD v RIC MEJIAS

Application by Federal Express (Australia) Pty Ltd re allegation of contempt by Ric Mejias in respect of unfair dismissal application IRC1720 of 2005

JUDGMENT [2005] NSWIRComm 474

1 The applicant, Federal Express (Australia) Pty Ltd, has commenced proceedings against the respondent, Ric Mejias, by notice of motion seeking certain orders arising out of and relating to proceedings commenced by the respondent against the applicant before the Industrial Relations Commission of New South Wales in which he sought relief under s 84 of the Industrial Relations Act 1996 ("the Act") ("the Commission proceedings"). The respondent had been employed by the applicant as a senior security specialist. It was a term and condition of his employment that information which he acquired about the applicant, its affiliates and its clients was to be kept confidential. His employment with the respondent was terminated on 14 April 2005 in summary fashion based on allegations of serious and wilful misconduct. In essence, the allegations included the fact that the respondent had gained improper access to certain tender documents, had created a conflict of interest by performing work for a client of the applicant outside his normal employment duties with the applicant, and that he had improperly used certain computer resources. 2 In these proceedings, the applicant seeks certain orders under s 164A(2) of the Act prohibiting the respondent from publishing certain material contained in documents lodged in the Commission proceedings or received in evidence in the Commission proceedings. The material consists of two attachments to a statement filed by the respondent in the Commission, certain contents of a second statement filed by him and two designated emails. 3 In general terms, the applicant alleged that none of the material whose publication was sought to be suppressed was relevant to the Commission proceedings and that that material contained or referred to items of a confidential and sensitive nature, particularly as they went to certain security matters. 4 Attachment "T" to the respondent's first statement in the Commission proceedings, comprises nine pages in tabulated form which set out a number of "examples of misconduct and policy violation (full records of memo's, pictures, interviews, etc available on request)" dating from July 2002 to August 2004 within the applicant's organisation. The documentation contains a large number of allegations of misconduct of a wide variety, said to have been reported to a number of named persons and detailing also the action asserted to have been taken with respect to each of them. It seems that the material was designed to assist the respondent in demonstrating to the Commission that the applicant had responded in a variety of ways to other instances of misconduct by other employees. Some of the allegations refer to procedures adopted by the applicant in connection with its delivery systems and its warehouse, as well as its cash-collection activities. 5 Attachment V to the respondent's first statement purports to be a "calendar of hours, duties, workdays, time-in-lieu etc", presumably worked by the respondent. It contains reference to a number of security services, provided presumably by the respondent on behalf of the applicant, some of which apply to airport and airlines and other matters relating to other activities of the applicant. There are also a large number of references to named persons, some of whom at least are presumably employed within the applicant's organisation. The document consists of 37 pages in tabulated form and appears to date from June 2002 to March 2005. 6 The respondent's second affidavit was filed in the Commission proceedings on 18 August 2005. It sets out in part a number of specific alleged breaches of security in and about aircraft operations and airport operations and makes allegations against named persons within the applicant's organisation concerning personal use of company mail systems, the distribution of pornographic material, and coercion to bring about unfair dismissal of employees. Contained within that affidavit, at paragraph 99 are five pages of tabulated material which alleges breaches of policy or government regulations, and name a large number of employees as "offender[s]". There is also an email attached from the respondent addressed to a number of named persons within the applicant's organisation, headed "settlement negotiations". That email alleges that his dismissal was unfair, refers to the Commission proceedings and then refers to the fact that "evidence to be provided in various Courts may be extremely damaging to FedEx. I wish FedEx no harm and my intention is to resolve this quickly and amicably and receive the compensation sought below without the risk of this becoming a long and painful process for either party". He then refers to "the many serious breaches of policy and misconduct at all levels of management with little or no action and in contrast a victimless action has seen my termination". Later in the email the respondent again hoped for a settlement of his proceedings but said that he was "planning for the worst and hoping for the best. My plans for the worst have included sending copies of over 42,408 emails, all investigation reports, memos, interview records, package loss information, CCTV files and much more related info to my solicitors in Sydney, Melbourne, Europe and the US with the expectation I may need to release extracts of this info globally for court cases or in the pursuit of compensation in other forms. Additionally, I have created a password-protected website to facilitate the access and transfer of relevant materials to appropriate regulators, media and legal teams in the expectation for the worst". 7 The applicant asserted, and the respondent did not deny, that a further email which had become evidence in the Commission proceedings was dated 13 September 2005. This email was addressed at the commencement to a number of media outlets, including well-known current affairs programs broadcast on Australian national television channels. It was headed "Major Airline Uncovered - Part 1 of 7". It was then addressed to the chairman and other officers, although it is not clear whether it was forwarded to the parent company of the applicant or, indeed, the applicant alone. There is a reference in that email to a number of alleged breaches of safety and regulatory matters and "finance policies" with particular reference to international aviation breaches, customs breaches and assaults and robbery affecting employees of the applicant whilst travelling. There is also a reference to "many missing packages" and the like. There is a threat to disclose the remaining parts of the story and the fact that the respondent looked forward "to questions and actions that facilitate an amicable resolution to outstanding issues". 8 Section 164A of the Act is in the following terms: