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[2019] FWC 3344
General information, not legal advice.
Fair Work Commission
2019-05-15
Original judgment source is linked above.
s.789FC - Application for an order to stop bullying
Application for an FWC order to stop bullying - application by the Applicant for interim orders and an application by the employer/principal for confidentiality orders - applications for interim and confidentiality orders not granted Application for an FWC order to stop bullying.
[1] On 29 October 2018 Ms Kim Hodgkins (the Applicant) filed an application under s.789FC of the Fair Work Act 2009 (the Act) seeking an order to stop bullying in accordance with Part 6-4B of the Act. In her application, Ms Hodgkins alleged that she had been bullied by the Chief Executive, a number of senior managers and several middle managers at the Australian Financial Security Agency (AFSA). AFSA in its Form F73 - Response from an employer/principal to an application for an order to stop bullying raised an objection to Ms Hodgkins' application on the basis that the alleged bullying behaviour was reasonable management action carried out in a reasonable manner.
[2] Ms Hodgkins' application was the subject of a conference convened by the Fair Work Commission (the Commission) on 3 December 2018 which failed to resolve the matter. The conference concluded on the basis that Ms Hodgkins would advise the Commission how she wished to proceed with her application. On 21 January 2019 Ms Hodgkins advised the Commission that she wished to have her application determined by the Commission. In subsequent developments, on 11 April 2019 Ms Hodgkins sent two emails to the Commission requesting that it issue an immediate interim order preventing her dismissal from the workplace. Ms Hodgkins application for interim orders was made in circumstances where an investigation into whether she had breached the APS Code of Conduct was about to be finalised.
[3] Ms Hodgkins' application for interim orders was listed for mention and directions hearing/conference on 17 April 2019. In conference, AFSA provided an undertaking that no decision on sanction arising from the Code of Conduct investigation would be made prior to Ms Hodgkins application for interim orders being determined. Directions were issued later that day, with Ms Hodgkins' application for an interim order heard on 10 May 2019.
[4] In other developments, AFSA in filing its submissions regarding Ms Hodgkins' application for interim orders filed an application seeking orders under s.593(3)(c) and 594(1) of the Act prohibiting the publication and disclosure of the names of the parties in the matter in any decision of the Commission regarding Ms Hodgkins' substantive bullying application.
[5] At the hearing on 10 May 2019, Ms Hodgkins appeared on her own behalf while Ms Catherine Mann, a Senior Executive Lawyer with the Australian Government Solicitor, appeared for AFSA.
[6] For the reasons set out below, I decline to make the orders sought by both Ms Hodgkins and AFSA. Directions and a notice of listing in respect of Ms Hodgkins' substantive application for an order to stop bullying will be issued in conjunction with this decision.
[7] In her application Ms Hodgkins described the behaviour which she considered to constitute bullying in the following terms:
"Over the past 2 years I have experience [sic] multiple bullying events at AFSA.
This is predominantly in relation to Public Interest Disclosures (PID) that I have made which the Agency has failed to address, and is trying to cover up.
The Agency appears to believe that terminating my employ [sic], or attacking my character in the workplace, is the easiest measure to address the multiple frauds, cover-up of fraud, flawed investigations, failure to comply with Commonwealth legislation, Code of Conduct breaches and ongoing bullying and harassment that I have raised with management and also via PID mechanisms.
As discussed with your officer ... on the phone today, the Executive of the Agency are employing measures to make it almost impossible for me to appropriately disclose matters under PID legislation. I'm also worried that they plan to terminate my employ [sic] so that it forces me to pursue these matters in an extremely disadvantaged state, being unemployed. As a single mother with sole responsibility for supporting my two young children, I need to ensure that this does not occur. Specifically as reprisal is expressly prohibited under the PID legislation."[1]
[8] In her application Ms Hodgkins cites the following as persons against whom bullying is alleged:
Mr Hamish McCormick, Chief Executive;
Mr Gavin McCosker, Deputy Chief Executive;
Mr Andrew Sellars, Chief Legal Officer;
Ms Bridie Dawson, Chief People Officer;
Ms Jenni Pain, Director;
Ms Jo Stone, Chief Financial Officer; and
Mr Mark Organ, Director Finance.
[9] Attached to the Ms Hodgkins' abovementioned emails of 11 April 2019 was among other things a copy of document titled Code of Conduct Investigation Report to the Australian Financial Security Authority Preliminary Findings and dated 2 April 2019. The document, which had been prepared by Ms Alison Spivey a consultant with law firm Ashurst, was forwarded to Ms Hodgkins to provide her with an opportunity to respond to the preliminary findings before the investigation report was finalised. Under the heading "Summary of Preliminary Findings" the document stated "I find that the information gathered supports the conclusion that Ms Hodgkins breached various elements of the APS Code of Conduct ..."[2]
[10] By way of background, the Code of Conduct investigation arose as a result of the alleged failure by Ms Hodgkins to provide a recording of a meeting she had with Mr McCosker on 21 September 2018 despite initially being asked to do so (as was agreed at the meeting) and subsequently directed to do so. The transcript of that meeting was also attached to Ms Hodgkins' emails of 11 April 2019 and is headed "Transcript of Meeting Re. Public Interest Disclosure and Reassignment of Duties". The following are extracts from the transcript:
"MS HODGKINS: ... is the agency willing to get this transcribed to be ...
MR McCOSKER: I'd like to have a copy of the recording, yes.
MS HODGKINS: Yes, that would be perfect."[3]
"MS ANDERSON [Ms Hodgkins' support person]: I can take on just to - it's probably a simple task for me to just download that into a file and email it to the four of you - three of you. That's easy enough for me to do, and I can do that on Monday.
MS ANDERSON: I can take that kind of administrative task from you.
MR McCOSKER: Okay, fantastic. All right, then, is it worth me - how do we do this? Do you want me to send these notes that I have, and then you add to them, or do you want me to - given you're working next week, Kim, do you want me to have a first cut at going through the recording and making the notes through that and send to you for then updating, given it'll take a bit of time? What would you suggest?
MR McCOSKER Okay, if you provide the recording, I will take the action to go through and do the first draft of the notes."[4]
[11] The Code of Conduct Investigation Report was finalised on 16 April 2019 with the summary of findings unchanged from the abovementioned Preliminary Findings Report. A copy of the final report was forwarded to Ms Hodgkins on 26 April 2019.
[12] As to AFSA's application for confidentiality orders, the grounds cited in AFSA's application as to why such orders were appropriate included:
the harm that AFSA and individual AFSA employees named in Ms Hodgkins' bullying application would suffer went beyond 'mere embarrassment, distress or damage by publicity';
there was a real question as to whether Ms Hodgkins' allegations involved serious questions to be tried;
• the identification of the parties in the matter may adversely affect the ongoing relationship between the Applicant and others in the agency as was the case in Application by Ms A,[5] and
[13] The provisions of the Act relevant to the applications before the Commission are set out below.
(1) The FWC may make decisions as to how, when and where a matter is to be dealt with.
(2) The FWC may make an interim decision in relation to a matter before it.
(3) The FWC may make a decision under this section:
(a) on its own initiative; or
(b) on application.
(4) This section does not limit the FWC's power to make decisions.
(1) The FWC is not required to hold a hearing in performing functions or exercising powers, except as provided by this Act.
(2) If the FWC holds a hearing in relation to a matter, the hearing must be held in public, except as provided by subsection (3).
(3) The FWC may make the following orders in relation to a hearing that the FWC holds if the FWC is satisfied that it is desirable to do so because of the confidential nature of any evidence, or for any other reason:
(a) orders that all or part of the hearing is to be held in private;
(b) orders about who may be present at the hearing;
(c) orders prohibiting or restricting the publication of the names and addresses of persons appearing at the hearing;
(d) orders prohibiting or restricting the publication of, or the disclosure to some or all of the persons present at the hearing of, the following:
(i) evidence given in the hearing;
(ii) matters contained in documents before the FWC in relation to the hearing.
(4) Subsection (3) does not apply to the publication of a submission made to the FWC for consideration in an annual wage review (see subsection 289(2)).
(1) The FWC may make an order prohibiting or restricting the publication of the following in relation to a matter before the FWC (whether or not the FWC holds a hearing in relation to the matter) if the FWC is satisfied that it is desirable to do so because of the confidential nature of any evidence, or for any other reason:
(a) evidence given to the FWC in relation to the matter;
(b) the names and addresses of persons making submissions to the FWC in relation to the matter;
(c) matters contained in documents lodged with the FWC or received in evidence by the FWC in relation to the matter;
(d) the whole or any part of its decisions or reasons in relation to the matter.
(2) Subsection (1) does not apply to the publication of a submission made to the FWC for consideration in an annual wage review (see subsection 289(2)).
[14] In her submissions Ms Hodgkins outlined the orders she sought as follows:
"• Preventing AFSA from taking any further steps to finalise the Code Of Conduct processes against me, including but not limited to, imposing any disciplinary sanction on me arising from the investigation or to terminate my employment;
[15] Ms Hodgkins submitted that the primary purpose of the interim orders was to preserve her capacity to advance her substantive bullying application, which she stated she would not be able to do were she to be dismissed. Key aspects of Ms Hodgkins' submissions included that:
her bullying and victimisation primarily started when she brought to the attention of her supervisor ongoing procurement breaches within AFSA;
rather than addressing the multiple Code of Conduct breaches by senior AFSA staff which she had identified, multiple executives sought to bully and harass her in an attempt to have her resign from the workplace;
the bullying conduct included transferring her from AFSA's finance area to its human resources area to isolate and exclude her within the workplace, refusing to provide her with appropriate transitional training, threatening her with suspension, threatening to escort her from the workplace after she asked to be afforded procedural fairness, initiating Code of Conduct processes against her after she raised public interest disclosures, having her report to Ms Dawson after she raised concerns regarding Ms Dawson's bias and ability to apply procedural fairness and ignoring her concerns regarding the ability of her assigned risk reprisal officer to undertake appropriate investigations based on evidence and in accordance with procedural fairness;
there have been numerous instances where she asserted that AFSA had conducted processes and investigations in a manner which were neither fair nor objective and where significant bias and conflict of interest existed, disputing AFSA's contention that this constituted reasonable management action;
these significantly flawed processes had been undertaken intentionally and constituted a form of bullying;
were she to be dismissed her substantive bullying application would not be heard and she would not be able to access the unfair dismissal/general protections jurisdiction except in an extremely disadvantaged state, i.e. being unemployed and having to use her personal time and resources to do so;
for more than two years she had suffered physical, emotional and psychological issues arising from these events in the workplace; and
she believed that she had more than sufficiently met the requirement to show a sufficient likelihood of success to justify the preservation of the status quo pending determination of her bullying application.
[16] In response to a question from the Commission regarding the breadth and enforceability of the fourth interim order which she sought, Ms Hodgkins indicated that the things which would have the biggest impact on her were changing her reporting lines so that she no longer reported to Ms Dawson and changing her risk reprisal officer. Ms Hodgkins also submitted that she wanted to have put in place processes which would give her some normality back such that she was not so ostracised in the workplace and was able to do her job in a reasonable manner.
[17] In support of both her substantive bullying application and her application for interim orders Ms Hodgkins filed with the Commission several hundred pages of documents which she contended was a sample of the indicative evidence which supported her application and noted that she intended to provide additional evidence and witness statements as part of the substantive process.
[18] Ms Hodgkins objected to AFSA's application for confidentiality orders for a number of reasons including that:
to grant the confidentiality orders would unreasonably impact on her ability to pursue and participate in a number of ongoing public interest disclosure matters and other internal processes related to her bullying application;
she did not have any issues with her name being disclosed;
she would consider the granting of the confidentiality orders to constitute further bullying, adding that she had asserted for nearly three years that she had been subjected to and suffered detrimentally because of numerous flawed processes intentionally undertaken by AFSA and by AFSA seeking numerous methods to prevent her disclosure of this information by legitimate channels with these tactics further isolating her in the workplace and taking away any support mechanisms or mechanisms for redress from her situation;
• relying on the decision in Amie Mac v Bank of Queensland Limited; Michelle Locke; Matthew Thompson; Stacey Hester; Christine Van Den Huevel; Jane Newman (BOQ),[6] it was not sufficient to justify the making of a confidentiality order merely because allegations had been made which were embarrassing, distressing or potentially damaging to reputations; and
[19] In its submissions regarding Ms Hodgkins' application for interim orders AFSA inter alia set out a chronology of key events and highlighted a number decisions regarding the issues to be considered in respect of an application for interim orders and the issue of reasonable management action carried out in a reasonable manner. The decisions included Quinn v Overland,[7] Aly v Commonwealth Securities Limited and others,[8] Ms SB,[9] and Miroslav Blagojevic v AGL Macquarie Pty Ltd; Mitchell Seears.[10]
[20] In summary, AFSA's position was that:
the Commission could not be satisfied that there was a serious question to be tried because there was a real prospect that its actions were reasonable management action carried out in a reasonable manner; and
the balance of convenience did not favour the making of any interim order because it would unjustifiably interfere with its ability to manage Ms Hodgkins, including addressing legitimate concerns about her behaviour.
[21] AFSA in its submissions noted that Ms Hodgkins in her application did not provide any specifics about the alleged bullying behaviours that would fall within the definition of when a worker was bullied at work under s.789FD of the Act. Despite this, AFSA sought to distil from Ms Hodgkins' submissions what appeared to it to be the alleged instances of bullying behaviour, identifying eight specific instances as well as a number of generalised allegations and complaints. Specifically, AFSA contended that Ms Hodgkins had not demonstrated a serious question to be tried, positing that with the exception of one allegation which involved an external consultant that each of the allegations identified concerned management actions taken by AFSA. AFSA further contended that in circumstances where Ms Hodgkins had not set out why these management actions were said to be unreasonable or why they had been carried out unreasonably and there was evidence before the Commission suggesting that there was a reasonable basis for the actions, the Commission should not be satisfied that Ms Hodgkins had a prima facie case establishing the allegations of bullying. AFSA also noted that many of the allegations raised by Ms Hodgkins had been considered by the Australian Public Service Commissioner who, in correspondence dated 6 May 2019 (sent by email on 7 May 2019), concluded that the evidence did not support that Mr McCormick had breached the APS Code of Conduct in relation to his dealings with Ms Hodgkins.[11]
[22] As to the balance of convenience, AFSA submitted that the balance of convenience favoured it because the inconvenience or injury which it would suffer were the interim orders granted outweighed the injury which Ms Hodgkins would suffer if the interim orders were not granted. In its submissions in this regard, AFSA drew extensively on the decision in Lynette Bayly (Bayly).[12] AFSA also submitted that:
while the termination of Ms Hodgkins' employment would prejudice her ability to pursue her substantive application, most of the interim orders which she sought went far beyond what would be reasonable and appropriate to protecting her interests in pursuing her substantive application;
granting the interim orders sought, particularly as they relate to the Code of Conduct processes, would involve circumventing reasonable disciplinary action and its consequences;
the present case could be distinguished from the circumstances in Bayly in a number of respects, including that making an order in this case would be premature in circumstances where a sanction delegate was yet to be appointed and there was no suggestion that Ms Hodgkins dismissal was being contemplated by AFSA;
it would be inappropriate to change Ms Hodgkins' current supervisory arrangements for the reasons outlined in Mr McCormick's letters of 22 March and 1 May 2019 to Ms Hodgkins which included the following reasons - "staff have reported concerns about your conduct and behaviour and moving you into your previous role may impact on work health and safety of staff in that work area" and "Ms Dawson, as the most senior HR practitioner in AFSA, is better placed than other supervisors to effectively monitor and manage the challenges associated with your conduct and behaviour in the workplace"; and
it would not be possible, nor appropriate to change the risk reprisal officer to a person in the wider APS given s.77(1) of the Public Interest Disclosure Act 2013 (Cth) (the PID Act) which provides that "[t]he principal officer of an agency ... may, by writing, delegate any or all of his or her functions or powers under this Act to a public official who belongs to the agency". (underlining added)
[23] AFSA further submitted that should the Commission decide to make any interim orders, the orders should not go beyond preserving Ms Hodgkins ability to pursue her substantive application, i.e. to provide a mechanism for her to seek an interim order should a sanction delegate write to her advising that they are considering imposing a sanction of termination of employment. AFSA also submitted that regardless of whether or not the Commission made an interim order, Ms Hodgkins' substantive application should be listed for hearing on an expedited basis.
[24] With regard to its application for confidentiality orders, AFSA submitted inter alia that:
• consistent with the principle of open justice and the aims of the anti-bullying jurisdiction as set out in the Explanatory Memorandum to the Fair Work Amendment Bill 2013,[13] it had sought minimal orders in an effort to maintain productive working relationships;
[25] In support of its application, ASFA relied on the decision in Australian Securities and Investments Commission v PTLZ, Australian Securities and Investments Commission v VLDP, Australian Securities and Investments Commission v Administrative Appeals Tribunal and Another (ASIC)[14] which included the following:
"[34] The starting point for any matter in the Tribunal is the legislation from which it derives its jurisdiction. Because it is not a court, the Tribunal has no common law or inherent jurisdiction. In the present case the source of jurisdiction is ss 41 and 35. In most cases the words of the legislation will be a sufficient guide to the Tribunal's exercise of jurisdiction. This is particularly so in interlocutory applications where "expedition" (s 33(1)(b)) assumes particular importance. Naturally, there will be occasions when decided cases will provide guidance, but the actual words of the legislation should provide the primary point of reference to which point it may be wise to return from time to time during the process of deliberation..."[15] (Underlining added)
[26] In response to a question from the Commission as to which "actual words" in ss. 593 and 594 the Commission should have particular regard to in determining its application for confidentiality orders, AFSA responded that the provisions provided the Commission with a broad discretion and did not limit the factors which the Commission could take into account. As to the decision in BOQ, AFSA posited that regard should be had to the fact that at this stage what was being sought in this case were interim as opposed to final orders and that to date both parties had made a number of allegations in the material they had filed with the Commission but no witnesses had been called in the matter.
[27] AFSA also responded to aspects of Ms Hodgkins' submissions regarding its confidentiality orders application, submitting among other things that:
it was not clear how any confidentiality orders would frustrate further public interest disclosures; and
granting the confidentiality orders would not diminish the deterrent effect of any decision issued by the Commission regarding Ms Hodgkins substantive bullying application.
[28] The principles to be applied to interim decisions were canvassed by Commissioner Hampton in Bayly and are set out below:
"5. The principles to be applied to an interim decision
[30] It has not been contended that the Commission is not empowered to make an interim order in connection with a s.789FC application. That is, it was not suggested by any party that s.589(2) was not available in an application of this nature or that s.789FF of the Act represented a bar to the making of an interim order. This is appropriate and I have proceeded on that basis.
[31] In Australian Manufacturing Workers' Union v WW Wedderburn Pty Ltd, Gooley DP was dealing with an application for bargaining orders under s.228 of the Act and made an interim order. The Deputy President said:
'[5] The AMWU submitted that in deciding whether to issue an interim order, the Commission must determine if there is a serious issue to be tried and balance of convenience.
[6] These principles were discussed by Bromberg J in Quinn v Overland where His Honour said:
"[45] In determining an application for interlocutory relief, the Court addresses two main inquiries. First, whether the applicant has made out a prima facie case in the sense that if the evidence remains as it is, there is a probability that at the trial of the action the applicant will be held entitled to relief. Second, whether the inconvenience or injury which the applicant would be likely to suffer if an injunction were refused outweighs or is outweighed by the injury which the respondent would suffer if an injunction were granted: Australian Broadcasting Corp v O'Neill [2006] HCA 46; (2006) 227 CLR 57 at [65], [19].
[46] The requirement of a "prima facie case" does not mean that the applicant must show that it is more probable than not that the applicant will succeed at trial. It is sufficient that the applicant show a sufficient likelihood of success to justify in the circumstances the preservation of the status quo pending the trial. How strong the probability needs to be depends upon the nature of the rights the applicant asserts and the practical consequences likely to flow from the order the applicant seeks. In that context there is no objection to the use of the phrase "serious question" to convey the strength of the probability: Australian Broadcasting Corp v O'Neill per Gummow and Hayne JJ at [65]-[72], Gleeson CJ and Crennan J agreeing at [19]."
[7] S.589(2) of the Fair Work Act 2009 gives the Commission power to make an interim decision. S.598(4) of the Act provides that a decision that is described as an order must be made by order. An example is given in a note and it refers to a decision that is described as a bargaining order."
[32] This approach is on all fours with that adopted by Gostencnik DP in Worker A, B, C, D and E v "Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU); Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia and others. This matter involved the issuing of interim orders in a s.789FC anti-bullying application.
[33] I have adopted an approach consistent with the above decisions.
[34] It also appears to me that the consideration of the prima facie case and the balance of convenience must be assessed having regard to the nature of the substantive application, the jurisdictional context in which the application is being considered, and the circumstances of the parties.
[35] In a matter such as this, I also consider that the nature of the remedy provisions of s.789FF of the Act should inform the consideration of the request for interim orders and the nature of any discretion to be exercised. However, the purpose of the interim orders, including to preserve the capacity to advance the substantive application in appropriate circumstances, must also be considered.
[36] I would also observe that given the scheme of the Act, interim orders of the nature being considered here would not be issued lightly. The direct intervention of the Commission at such an early stage of proceedings should be exercised with considerable caution. Further, the mere indication that a disciplinary process was involved in the complaints of workplace bullying, without much more, is unlikely to trigger the balance of convenience necessary for such action. Of course, each application must be considered in its own right and circumstances.
[37] As BKI contended, the Commission should be alert to the undesirability of permitting the anti-bullying jurisdiction to simply be used to circumvent reasonable disciplinary action and its consequences. In this case, there are some particular circumstances that have justified the making of the interim order."[16] (Endnotes not included)
[29] I have adopted the approach outlined above in this case.
[30] In this case I consider that there is a serious issue to be tried both in respect of Ms Hodgkins' application and AFSA's jurisdictional objection. In my view, these considerations balance each other out.
[31] However, with regard to the first interim order sought by Ms Hodgkins, I am not satisfied that the balance of convenience warrants making the interim order sought by Ms Hodgkins to prevent AFSA concluding its Code of Conduct investigation. More particularly, in the absence of any probative material pointing to AFSA giving consideration to terminating Ms Hodgkins' employment it is difficult to see what inconvenience or injury Ms Hodgkins would suffer in the absence of the interim order being made at this point in time. A relevant consideration in that regard is that it would be open to Ms Hodgkins to make a further application for an interim order should the sanction delegate, when appointed, indicate that they are considering the termination of her employment as the appropriate sanction in this case.
[32] With regard to the orders sought in respect of Ms Dawson and Ms Denton, I am again not satisfied that the balance of convenience supports the making of the second and third interim orders sought by Ms Hodgkins. Relevant considerations in coming to that view include the fact that Ms Hodgkins will relocate to AFSA's Brisbane office as of 8 July 2019 and the requirements of s.77(1) of the PID Act. I note also that Mr Denton is not named in Ms Hodgkins bullying application as a person against whom bullying is alleged (though on 13 May 2019 the Applicant made an application to amend her application to add Ms Denton - that application is yet to be determined).
[33] As to the final interim order sought by Ms Hodgkins, I note that it is framed so broadly that it would be unenforceable and Ms Hodgkins' previously mentioned response to a question from the Commission that the things which would have the greatest impact on her were changing both who she reported to and her risk reprisal officer. Against that background, I am not satisfied that the balance of convenience supports the making of the fourth interim order sought by Ms Hodgkins.
[34] The decision in ASIC in my view provides little practical assistance in this matter given that the terms of ss.593 and 594 provide no guidance as to when the broad discretion provided for in those provisions is to be exercised. More relevant in my view to AFSA's application for confidentiality orders is the decision in BOQ where Vice President Hatcher dealt with the issue of an application to de-identify the respondents in a bullying application. At paragraph [6] of that decision, Hatcher VP sets out the main features of the principle of open justice as summarised in the NSW Supreme Court decision (Pembroke J) in Seven Network (Operations) Limited & Ors v James Warburton (No 1).[17] It is not necessary to repeat that summary here. Of particular relevance to the application before me, Hatcher VP in BOQ explored the application of the principle of open justice in relation to the anti-bullying jurisdiction established by Part 6-4B of the Act. Specifically, Hatcher VP made the following observations:
"[9] In relation to the anti-bullying jurisdiction established by Part 6-4B of the FW Act, it is apparent that the purpose of the legislation, namely to ensure that workers can continue in their engagements at work free from the risk to health and safety caused by workplace bullying, would be defeated if the public disclosure of sensitive information during the course of anti-bullying proceedings would be likely to have the effect of rendering the relevant worker's continuing engagement unviable. However it is equally apparent that, in accordance with the open justice principle, it is not sufficient to justify the making of a non-disclosure order merely that allegations have been made which are embarrassing, distressing or potentially damaging to reputations. In an anti-bullying matter, as with other types of proceedings before the Commission such as unfair dismissal remedy applications, the findings of the Commission concerning allegations which have been made will usually appropriately resolve concerns about embarrassment, distress or damage to reputation. If findings are made that an applicant's allegations of bullying behaviour are unfounded, then the position of persons alleged to be the perpetrators of such bullying will be vindicated and the outcome will redound upon the applicant. However if allegations of bullying are found to be substantiated, then public identification of the perpetrators of that bullying is normally appropriate. In either case, the public scrutiny involved will have a deterrent effect that is in the public interest - in the former case against the making of unfounded allegations and in the latter case against engagement in bullying behaviour." (Underlining added)
[35] In this case Ms Hodgkins did not object to her name being published. While I note AFSA's submissions in support of its application, based on the material before the Commission it appears that Ms Hodgkins' relationship with those named in her application is already quite strained. In those circumstances, I fail to see how granting the confidentiality orders sought by AFSA would assist in maintaining productive working relationships between Ms Hodgkins and those named in her application. Similarly, in the absence of any probative evidence I consider it unlikely that not granting the confidentiality orders will result in some broader negative impact on working relationships within AFSA and particularly between the named individuals and those that they interact with in the workplace.
[36] Drawing on the decision in BOQ, these considerations when taken together do not outweigh the principle of open justice or support the making of orders sought by AFSA.
[37] For all the above reasons I decline to make the interim orders sought by Ms Hodgkins or the confidentiality orders sought by AFSA. As previously noted, it is open to Ms Hodgkins to make a further application for an interim order should the sanction delegate, when appointed, indicate that they are considering the termination of her employment as the appropriate sanction in this case.
[38] In terms of next steps, Directions and a notice of listing will be issued in conjunction with this decision in respect of Ms Hodgkins' substantive bullying application. While those Directions have regard to the views of the parties as expressed in conference following the hearing on 10 May 2019, they provide for an expedited hearing of Ms Hodgkins' bullying application. The timetable necessarily requires both Ms Hodgkins and AFSA to clearly set out the grounds they rely on in support of their respective submissions and that any evidentiary material that they seek to rely on is directed to establishing/supporting those grounds. In that context, both parties should be particularly judicious as to the material they seek to rely on in respect of their submissions. To that end, I note that the unstructured provision of copious numbers of documents in circumstances where those documents are not linked to any particular submission/evidentiary point is likely to be of little assistance to the Commission in determining the substantive application and AFSA's jurisdictional objection.
C. Mann for the Australian Financial Security Agency
[1] Form F72 - Application for an order to stop bullying at Question 2.1
[16] [2017] FWC 1886 at [30]- [37]
Printed by authority of the Commonwealth Government Printer
(2006) 227 CLR 57
(2010) 199 IR 40