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: s 164A Powers of Commission as to the disclosure of matters before the Commission (1) A "non-disclosure order" is any of the following orders: (a) an order prohibiting or restricting: (i) the disclosure of the name, address, picture or any other material that identifies, or may lead to the identification of, any person (whether or not a party to proceedings before the Commission or a witness summoned by, or appearing before, the Commission), or (ii) the doing of any other thing that identifies, or may lead to the identification of, any such person, (b) an order prohibiting or restricting the publication or broadcast of any report of proceedings before the Commission, (c) an order prohibiting or restricting the publication of evidence given before the Commission, whether in public or in private, or of matters contained in documents lodged with the Commission or received in evidence by the Commission, (d) an order prohibiting or restricting the disclosure to some or all of the parties to the proceedings of evidence given before the Commission, or of the contents of a document lodged with the Commission or received in evidence by the Commission, in relation to the proceedings. (2) The Commission in Court Session may make any non-disclosure order if it is satisfied that it is desirable to do so by reason of the confidential nature of any evidence or matter or for any other reason. (3) The Commission (other than in Court Session) may make any non-disclosure order only if: (a) in relation to proceedings under the Child Protection (Prohibited Employment) Act 1998 —it is satisfied that it is desirable to do so by reason of the confidential nature of any evidence or matter or for any other reason, or (b) in relation to any other proceedings—it is satisfied that it is necessary to do so in the interests of justice. (4) The Commission may from time to time vary or revoke an order it has made under this section. (5) Nothing in this section operates to limit any power of the Commission in Court Session apart from this section to make a non-disclosure order or any other order prohibiting or restricting the disclosure or publication of matters before the Commission. 9 As I understand the section, subsection (1) is designed to identify the types of orders that may be issued. It seems that subsection (2) allows the Court to make an order by reference to the confidential nature of any evidence or "for any other reason". There seems no reason why, given the language used, that such an order made by the Court should be confined to Court matters. Accordingly, it would seem that subsection (2) will allow the Court to make a non-disclosure order with respect to proceedings before the Commission generally. Such an interpretation is aided by the provisions of subsection (5). 10 The circumstances in which an order under s 164A should be made were considered recently by a Full Bench of this Court in Harry Day v John Smidmore and ors (No 2) [2005] NSWIRComm 406. In a joint judgment, Wright J, President, Boland and Backman JJ referred to the wide scope for exercising discretion given to the Court by the legislature, which should be exercised against the background that the relevant proceedings were being conducted in open court. The Court stressed that the discretion given by the section should not be exercised merely to avoid embarrassment or concepts of invasion of privacy, or even perhaps a damage to reputation. Their Honours said that the power "should only be exercised sparingly and, unless the circumstances are exceptional, only where a party or person invokes them at an appropriate stage of the proceedings" (at paragraph [43]). 11 I should state for completeness that the applicant has attempted for some considerable time to have the material of which it now complains suppressed. Indeed, it sought orders to that effect from the Commissioner before whom the proceedings were being conducted. That application was settled on the basis of certain undertakings given by the respondent which were recorded in a "statement" issued by the Commissioner on 25 May 2005. 12 It is clear from the narrative of the events referred to above that the respondent has breached the agreed settlement and undertakings which he had given to the Commission as reflected in the statement of 25 May 2005. There is evidence before the Court of subsequent communications between solicitors for the applicant and the respondent in which it again sought an undertaking in similar terms. However, the respondent has declined to give such an undertaking. 13 In my opinion, the material which is the subject of this application and to which I have referred is of a sensitive kind in that it refers to allegations of breaches of security and safety which, in the public interest, should not be capable of being accessed by any person or organisation not associated with the proceedings. In coming to this opinion I take into account also that the respondent breached an undertaking given to the Commission and that a large number of persons within the applicant's organisation are personally named in circumstances where any reference to these matters and to those persons can have only tenuous relevance to the Commission proceedings. In fact, much of the material complained about was not permitted to be adduced into evidence in the Commission proceedings. I should add that all of the evidence has been given in the Commission proceedings and the only remaining step prior to the delivery of a decision is for submissions to be made concerning the evidence. 14 For completeness, I should state that the application sought a further order that the Commission proceedings be referred to the registrar pursuant to Rule 237 of the Industrial Relations Commission Rules 1996 "to apply by motion for, or to commence proceedings for, punishment for contempt". The application for this order is stood over to allow the applicant to make formal submissions with respect to the appropriateness of such a step given the alternative means of commencement of contempt proceedings under Rule 232, and given the fact that the application is before the Court when arguably more properly it should be before the member of the Commission dealing with the Commission proceedings. 15 Accordingly, the application for this order is stood over with liberty to apply. ORDERS: 16 Pursuant to s 164A(2) of the Act: 1. The Court prohibits the publication of the following matters contained in documents lodged with the Industrial Relations Commission of New South Wales or received in evidence by that Commission in matter number IRC 1720 of 2005, namely attachments T and V to the first statement of Ric Mejias filed 17 May 2005; paragraphs 8, 41, 42, 43, 44, 61, 70, 71, 72, 73 and 99 of the second statement of Ric Mejias filed 18 August 2005 and emails created by Ric Mejias dated 18 May 2005 and 13 September 2005: 2. The Court orders that access to the file of the Industrial Relations Commission of New South Wales in matter number IRC 1720 of 2005 and of this Court in matter number IRC 5240 of 2005 is restricted to the extent that no person or organisation may be granted access to the files other than a party prior to consultation by the Industrial Registrar with both parties to determine whether there is any objection to such access being granted. 3. The respondent is to pay the applicant's costs of the motion assessed in default of agreement. AMENDMENTS HISTORY: 21/12/2005 - administrative error - Paragraph(s) headnote 14/03/2007 - legal representative's name omitted - Paragraph(s) headnotes DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.