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. The Orders Sought 6At the proceedings on 11 March 2011, the parties sought consent orders pursuant to s. 164A (1)(a) and s. 164A (3)(b) of the Act. The parties sought the prohibition of the publication or broadcast of (or the doing of any other thing that identifies) the name, address, picture or any other information or material that identifies, or may lead to the identification of eight witnesses of the Respondent in the substantive proceedings as well as the Applicant and three of his character witnesses, including the prohibition of the publishing or broadcast of the reasons for decision or any part of reasons in these proceedings. 7Alternatively, the consent orders sought the substitution of pseudonyms for the names of the said persons, including the Applicant in the substantive proceedings. 8In addition to the above, the Respondent in the Notice of Motion sought the inclusion in the non-disclosure orders of the Applicant in the Notice of Motion on the basis that to name the agency is to identify the workplace. That application was not supported by the Applicant in the Notice of Motion. The Submissions 9The Applicant's Notice of Motion was supported by affidavits from Ms Christa Anne Ludlow, Assistant Crown Solicitor, Employment Law, in the Crown Solicitor's Office and Michael Baldi, Assistant Director Employee Relations. 10In her affidavit, Ms Ludlow advised that she had spoken to some of the [named] women in respect of whom the non-publication orders are sought and from her own observations, and from direct advice from the women, she can categorically state that all of them are anxious at being involved or named in these proceedings: 3. All of them have expressed reluctance to be further involved with the Applicant and, in particular, have expressed anxiety about being named and involved in the Commission proceedings. 4. Each of the women has been offered EAP counselling to assist them. ..... 15. .... when the possibility of seeking non-publication orders were raised with them, they expressed a view that such orders would alleviate at least some of their anxiety. 11In his affidavit, Mr Baldi stated: "I have had the opportunity to talk with, receive feedback from the CSO and observe the Department's witnesses during the disciplinary process. There is no doubt that these women are extremely concerned and anxious at the prospect of having to revisit these matters, particularly in the setting of a formal hearing. Both during the course of the investigation and more recently, these women have been offered confidential counselling and support through the Department's Employee Assistance Program. I am aware that during the disciplinary investigation processes, one of the women was considering resigning from her employment, and took two (2) weeks leave in order to consider her future. I have since been informed that another of the women did resign based, in part, on the conduct of the applicant. It is also significant that most of the allegations against the applicant did not come to the Department's attention because they themselves had lodged specific complaints. They were identified by the appointed independent investigator (Ms Joy Woodhouse) during her investigation into the applicant's conduct and were asked to provide information as part of the disciplinary process. Most of those women came forward to assist the CSO quite reluctantly because of their stated anxiety and distress at being involved in the matter. ...... Ms Woodhouse advised the Department that considerable time and effort had been spent towards alleviating staff concerns and anxiety about providing information and witness statements and the investigation process in general... Given the fact that the role of the CSO involves the provision of legal advice and representation before various courts and tribunals, in my opinion, this case is likely to attract media attention. One of the women currently holds a senior position within the CSO and manages one of the Legal Practice Groups. The other women are in their early to mid twenties and at the beginning of their careers. In both cases, the effect of publication of their identity will bring unwelcome notoriety. Given the nature of the allegations and the findings of the investigations, I hold concerns about the psychological impact on them in having to revisit these matters during the hearing. I hold concerns about any potential public/media attention this case may receive, including potential scrutiny, embarrassment and impact upon these women who had no role whatsoever in commencing these proceedings, but simply provided witness statements to .... their employer. ...I hold concerns about the possible impact upon the witness' characters, reputations and future employment opportunities. If the women are not afforded anonymity in relation to the applicant's case, I also hold concerns about the impact on CSO workplace and the possibility for disharmony, and the detrimental impact that may be experienced by Departmental witnesses." 12Ms Nom Chong, appearing on behalf of the Applicant in the Notice of Motion, relied on the principles laid down in the judgment in Harry Day v John Smidmore and others (No 2) [2005] NSWIRComm 406 (8 November 2005): 13Ms Nom Chong elaborated on the contents of the affidavits in oral submissions. It was pointed out that the innuendo, gossip and the like which will be generated if legal officers in the Crown Solicitor's Office contend that they were victims of inappropriate sexual conduct can have quite significant effect on their careers. 14Ms Nom Chong pointed out the relevant factors in the present case that bore similarity to the considerations in Smidmore : (i)the persons which it sought to protect by the use of pseudonyms were not parties to the proceedings. They were witnesses; (ii)their common law right to have their private rights protected; (iii)the Respondent in the Notice of Motion consented to the orders being made; (iv)most of the women were young and had their careers in front of them; (v)the said persons are not public figures and there could be no public interest in the public knowing their identity; and (vi)the interests of justice would not be served by the said people learning a very hard lesson that if they come forward and lodge a complaint of this nature that they would be the ones who bear a tarnish to their reputation as a result of the inappropriate conduct of the perpetrator. (vii)One of the said people has already indicated to Ms Ludlow that if her name is published she would have to resign her employment; (viii)the legal profession is a small community where reputations are held in the highest regard and people are regarded by their reputation. Therefore the said people are keen to avoid the gossip that would be generated about them if their identities are known. 15Mr McArdle, on behalf of the Respondent in the Notice of Motion, relied on the judgment by Schmidt J in X and The NSW Department of Education and Training [1999] NSWIRComm 34 (12 February 1999) in support of its contention that his client's name and that of his witnesses should also be the subject of non-publication orders. 16In particular, attention was drawn to the following statement by her honour: It would be most unfortunate if the hearing of an application itself exacerbated any unfair aspect of a dismissal, so as to make inevitable a finding that reinstatement was impracticable. It seems to me no real answer to the applicant's argument that if the hearing makes an order of reinstatement impracticable, that an order of re-employment might be considered under s 89 as an alternative. 17Mr McArdle put forward the following in support of the claim: (a)the applicant is 53 years of age; (b)he has been employed in the public service for 28 of those years and has nowhere else to go; (c)grave concerns were held for his reputation and his future employment opportunities would be severely damaged if the allegations against him are made public, (d)grave concerns were held for the reputation of his colleagues who continue to be employed by the Respondent and who provided him with references for the substantive proceedings. (e)the primary jurisdiction of the Commission is reinstatement. If there is a "public furore" over the issues raised in the proceedings, then it would undermine the practicability of reinstatement if the applicant was successful; and (f)the application, save for non-disclosure of the Respondent's name in the substantive proceedings, was brought by consent; LEGISLATIVE BACKGROUND 18Section 164A of the Industrial Relations Act 1996 relevantly provides as follows: 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) .............. (3) The Commission (other than in Court Session) may make any non-disclosure order only if: (a) ....... (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. CONSIDERATION 19The leading judgment in Harry Day v John Smidmore and others (No 2) [2005] NSWIRComm 406 (8 November 2005) sets out the following principles in relation to non-disclosure orders to be made by the Industrial Relations Commission: (g)Section 164A of the Act confers specific and wide powers on the Industrial Relations Commission to make non-disclosure orders: (ix)prohibiting or restricting 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) [s 164A(1)(a)], or (x)the doing of any other thing that identifies, or may lead to the identification of, any such person.... [s 164A (1)(a)) (xi)an order prohibiting or restricting the publication or broadcast of any report of proceedings before the Commission [s 164A (1)(b)] (xii)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 [s 164A (1)(c) (h)The Commission's jurisdiction is sufficiently broad to make a non-disclosure order: (xiii)restricting access to the Commission's file to the extent that before any person may be granted access, the parties will be consulted by the Industrial Registrar to determine whether there is any objection to access [s 164A (1)(a)(i) and (ii)] (xiv)prohibiting the publishing or broadcast of the reasons for decision or any part of reasons [s 164A(1)(b)] (xv)restricting the disclosure of the name of any person by substituting pseudonyms for the names of certain persons named in the original judgment [s 164A(1)(a)] and (xvi)restricting the publication of evidence given before the Commission or of matters contained in documents lodged with the Commission or received in evidence by the Commission by deleting certain passages in the original judgment (s 164A(1)(c)] (i)The paramount consideration remains the principle of open justice. Proceedings of every court are fully exposed to public and professional scrutiny and criticism in order to maintain confidence in the integrity and independence of the courts and to avoid abuses from flourishing undetected. On that basis, legal proceedings should be heard in public unless the contrary is clearly required by the dictates of justice. (j)The legislature intended to give the Court a much wider scope for exercising its discretion to make non-disclosure orders than the common law test. The Commission may exercise its discretion to make non-disclosure orders 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. (k)Non-disclosure orders, such as pseudonym orders, sought to protect persons from injury, hurt, embarrassment or distress would not be sufficient to justify a non-disclosure order and would be inimical to the ordinary rule that proceedings be conducted publicly. (l)Justice required that, even if proceedings are held in camera, an appropriately formulated statement of reasons should be made so as to give effect to the absolute right of the public to know what orders are being made by the courts; 20In granting the application in Smidmore , the Full Bench took into account the following: (m)the very wide power granted to the Commission in Court Session to do so under section 164A(2) (n)the non-opposition of the other party to the proceedings; (o)the unchallenged evidence regarding the distress felt by certain persons at seeing their names in the judgment linked to unsavoury allegations of a professional and personal nature and the effect that might have on careers and the respondent's business. (p)three of the persons experiencing distress were not parties to the proceedings (two were potential witnesses and the third had no connection with the proceedings at all), (q)there must be a degree of doubt as to whether some of the allegations could serve any legitimate forensic purpose; (r)the appellant's conduct in, inter alia, making the allegations was regarded by the Full Bench as "utterly reprehensible and scandalous behaviour by an officer of the Court"; (s)the persons for whom anonymity was sought were not public figure and there can be little public interest in the public knowing their identity; (t)the appellant will not be prejudiced by granting the respondents' orders; (u)the common law has a long tradition of protecting persons' right to privacy and the Full Bench is entitled to give weight to the private rights of persons: John Fairfax Publications Pty Ltd & 2 Ors v Ryde Local Court & 3 Ors (2005) 62 NSWLR 512 at [77] 21X has had grave allegations made against him which he denies and therefore he needs to clear his name and obtain reinstatement. The Applicant in the Notice of Motion, after conducting an investigation into the matter, holds a different view and has terminated the employment X. There appear to be a number of witnesses who will attest to the behaviour alleged against X. For his part, X has a number of witnesses who have provided him with character references. 22There is an obvious public interest in the substantive matter being heard in public. However, there is justification for some of the names of the parties being kept private. 23The draft orders are consented to by the parties, save for the non-publication of the employer. 24The witnesses called on behalf of the parties are not public figures and there is no public interest in their identity being made public. 25I note that the evidence before the Commission in relation to the distress and anxiety that will be felt by the witnesses who will be called to give direct evidence in relation to the allegations of sexual misconduct is unchallenged. It is also noted that they are not parties to the substantive proceedings. 26The witnesses for which X seeks non-publication orders, it is noted, are merely providing character references in the matter and, in my view, do not fall within the category contemplated in Smidmore . 27I accept that, in the present circumstances, an order of reinstatement or reemployment would be rendered futile if, ultimately, the dismissal of X is held to be harsh, unreasonable or unjust. 28Having considered all of the evidence in these proceedings, I take the view, on balance, that a basis has been established for the making of orders keeping confidential the name of X and the Respondent's witnesses (a) - (gi). 29No basis has been made out for the non-disclosure of the employer or any of the X's witnesses. That part of the application is denied. dECISION 30An order pursuant to section 164A (3)(b) and s 164A (1)(a) of the Industrial Relations Act, 1996 (NSW) is made substituting pseudonyms for the names of the Applicant named in (h) and the Respondent's witnesses number (a) to (gi) in the Consent orders tendered in the proceedings and marked as Exhibit N3. 31The parties are directed to file, within 7 days of today's date, agreed terms of the orders reflecting this decision. I Tabbaa 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. Decision last updated: 15 March 2011