Industrial Relations Commission of New South Wales CITATION: Sleap & ABB Administrative Services Pty Ltd [2005] NSWIRComm 1193 APPLICANT: Mr. Paul Sleap PARTIES: RESPONDENT: ABB Administrative Services Pty Ltd. FILE NUMBER(S): 1987 of 2005 CORAM: Ritchie C Unfair dismissal claim Respondent sought a non-disclosure order under s. 164A of IRAct. Application opposed by applicant. Witness to be, would not give evidence unless non-disclosure order in place. Respondent believe evidence to be given by witness vital to their case. CATCHWORDS: Could not make an application under s.128 of the Evidence Act because Commission as constituted is not a Court. Commission satisfied that based on submissions that orders be made in the interests of justice. Orders made as originally applied for and not as sought to be varied by the respondent. Believe orders originally applied for protect both witness and applicant. Industrial Relations Act 1996 LEGISLATION CITED: Evidence Act 1995 HEARING DATES: 11/18/2005 DATE OF JUDGMENT: 11/22/2005 APPLICANT: Mr.O'Sullivan from Turner Freeman LEGAL REPRESENTATIVES: RESPONDENT: Mr Robinson from Fisher Cartwright Berriman DECISION: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: Ritchie C. 22 November 2005 Matter No IRC 1987of 2005 IN THE MATTER OF: Paul Sleap and ABB Administrative Services Pty Limited. Application by Paul Sleap re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996 INTERIM DECISION [2005] NSWIRComm 1193 1 Mr Paul Sleap (the applicant ) was terminated from ABB Administrative Services Pty Limited (the respondent) on 5 April 2005. The applicant was summarily terminated due to a "serious breach of Company policy with respect to you approving your sub-ordinate employee's American Express credit card expenditure with full knowledge that the expenses were not work-related." 2 On 19 April 2005 Turner Freeman Lawyers on behalf of the applicant filed an application under s. 84 of the Industrial Relations Act 1996 (the Act). The application came on before Cambridge C. for directions on 23 September 2005. As a consequence of an application under s. 173 of the Act, the application was reallocated to the Commission as presently constituted. A mention was held on 26 September and a timetable for the filing and serving of evidentiary material and hearing dates were provided to the parties. 3 Prior to the hearing dates an application was filed by Fisher Cartwright Berriman Lawyers & Consultants on behalf of the respondents for a Non-Disclosure Orders (the Orders). The Orders sought were in the following form: 1. The respondent moves the Industrial Relations Commission of New South Wales(" Commission ") for the following orders: a. any written or oral evidence given by "Mr A" in these proceedings be heard in Camera; b. any written or oral evidence given by the applicant in reply to any evidence by "Mr A" be heard in camera; c. any evidence given in accordance with (a) or (b) above must not be made public by the parties or their legal representatives; d. Access to the Commission's files with regard to the evidence given in accordance with (a) or (b) above, including transcript recordings of the evidence, be limited to the parties or their legal representatives; e. The publication of the evidence given in accordance with (a) or (b) above be suppressed. 4 Mr. Robinson provided a brief written summary of submissions and spoke to same. His submission was that where a Court compels a witness to answer a question and the witness objects to answering the question on the grounds of self-incrimination, the Court is to follow the procedure adopted by s.128 of the Evidence Act 1995(NSW). As the Commission as presently constituted is not a Court then it can not issue a S.128 Certificate. However when exercising its power under s.87, the Commission has power under s.164 A(3) to make a "non disclosure order" only if " it is satisfied that it is necessary to do so in the interests of justice." It was Mr. Robinson's submission that the evidence of the prospective witness "Mr A" is highly significant to the proceedings, as the evidence alleges that both the applicant and "Mr A" were together involved in defrauding the respondent. These issues strike at the very heart of the Commission's determination as to whether the dismissal of the applicant was harsh, unreasonable or unjust. 5 Whilst the respondent accepts that the exercising of the Commission's power should be carried out in public, it is appropriate that in this particular case that an Order should be made. 6 It is also in the public interest for the Commission to be able to properly hear this case and receive in evidence, the best possible evidence. The applicant would not suffer any prejudice if the Orders sought were granted as it would not restrict the applicant's ability to cross examine "Mr A". He also stated that from a procedural point of view the Commission could publish its decision at the conclusion of the substantive case and have a confidential appendix. The confidential appendix would contain any evidence/conclusions that were covered by the Orders. 7 During submissions Mr Robinson applied to vary the Orders sought by deleting reference to evidence that fell from the applicant. This he sought as his primary submission, so as to mirror what was expressed under s. 128 of the Evidence Act. If that was not acceptable to the Commission then he would pursue his secondary submission being his original claim. 8 Mr. O'Sullivan who appeared for the applicant was instructed to oppose the original Orders sought. He also saw difficulties with respect to the Orders sought as varied. He did not believe there was sufficient material before the Commission for the Commission to grant the Orders sought. 9 Mr. Ulbrinck, solicitor, appeared by teleconference assisting "Mr A". He stated that "Mr A" would not give evidence in the matter unless the Orders as originally sought were granted. He also had misgivings with respect to the Orders sought as varied. Consideration and Decision. 10 S. 164A of the Act is expressed in the following form: [IRA 164A] Powers of Commission as to the disclosure of matters before the Commission. 164A (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 a 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 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. 11 Clearly the Commission as presently constituted has the power to make an Order in the form sought by the respondent. 12 Taking into consideration the material and cases that have been placed before the Commission it is my finding that the respondent has satisfied the Commission that it is necessary to make a non-disclosure Order in the interests of justice. 13 I do not belief it would be appropriate to make as sought by the respondent a non-disclosure Order in the form as varied. In this regard I accept the comments of both Mr. O'Sullivan and Mr. Ulbrinck and in summary believe protection should be afforded to both the applicant and "Mr A". 14 I therefore under s.164A (3)(b) of the Act make Orders in the form as originally applied for by the respondent. 15 This matter will proceed to hearing before McDonald C. to commence on 28 November at 9.30am. D RITCHIE COMMISSIONER 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.