X v Department of Justice and Attorney General [2011] NSWIRComm 1010

Industrial Relations Commission New South Wales Medium Neutral Citation: X v Department of Justice and Attorney General [2011] NSWIRComm 1010 Hearing dates: 11 March 2011 Decision date: 15 March 2011 Jurisdiction: Industrial Relations Commission Before: Tabbaa C Decision: Non-publication orders issued in relation to the Applicant and the Respondent's witnesses identified as (a) - (gi) Catchwords: NON-PUBLICATION ORDERS -unfair dismissal - suppression orders as to names of Applicant and witnesses - genuine likelihood of injury to professional and personal reputation - psychological welfare of witnesses - potential for disharmony within the business operations of the Respondent - publication of names would preclude ability of Applicant to obtain re-instatement Legislation Cited: Industrial Relations Act 1996 (NSW) Cases Cited: Harry Day v John Smidmore & ors. (No. 2)[2005] NSWIRComm 406 X v The NSW Department of Education and Training [1999] NSWIRComm 34 Category: Procedural and other rulings Parties: Representation: Ms K Nom Chong (Applicant) Mr C McArdle (Respondent) McArdle Legal File Number(s): IRC 1495 of 2010

DECISION 1X, the Respondent in the Notice of Motion, filed a claim pursuant to section 84 of the Industrial Relations Act 1996 ("the Act") on 21 December 2010 seeking relief from his alleged unfair dismissal by the Department of Justice and Attorney General. X commenced employment with the Public Sector on 15 October 1979 and with the Respondent on 5 August 2002. At the time of his termination on 1 December 2010, he was classified as a permanent full-time Business Services Manager in the Crown Solicitor's Office and engaged pursuant to the terms and conditions of the Crown Employees (Conditions of Employment) Award 2009 and Crown Employees (Salaries) Award 2008. 2X was suspended with pay on 13 August 2010 pending investigation of a complaint of sexual harassment and inappropriate use of the email system. 3The matter was listed for conciliation and directions hearing before Lynch C on 18 January 2011. Conciliation attempts failed to resolve the claim and the matter has been listed for hearing on 4 - 8 April 2011 inclusive. 4On 7 March 2011, the Department of Justice and Attorney General filed a Notice of Motion seeking suppression of the names of the female witnesses who have alleged the misconduct by X. 5In its grounds and reasons for the proposed order, the Applicant in the Notice of Motion stated as follows: 1. The women the subject of the proposed Order above are all current or former employees of the Respondent and, in that capacity, have a professional and personal reputation. There is a genuine likelihood of injury to their professional and personal reputation, both within the Crown solicitor's Office, the legal profession and within the wider community by reason of the publication of their names in association with the proceedings brought by the Applicant. 2. The anxiety, distress and humiliation at having their identities published as part of these proceedings is having a detrimental impact on their psychological welfare. 3. The Applicant has obtained character references from other female members of the Respondent's staff and is relying on those references in the proceedings. The potential for disharmony within the business operations of the Respondent's organisation from publication of the names of the said witnesses or material that may identify them is genuine. 4. It is appropriate for such a non-publication order to be issued in order to assist in the fair determination of the Applicant's claim.