s.394 - Unfair dismissal

Application for an unfair dismissal remedy - application to set aside confidentiality order - application dismissed.

[1] Mr Tucker has made an application to set aside, or alternatively vary, the interim confidentiality order made by Commissioner Bissett on 15 October 2019 (Order).[1] Mr Tucker seeks that the Order be set aside or varied pursuant to either or both of section 589(1)(b) and section 603(2)(b) of the Fair Work Act 2009 (Act) (Set Aside Application).

[2] At the outset, I note that section 589 of the Act does not include a subsection (1)(b). Accordingly, I have proceeded on the basis that Mr Tucker sought to rely upon section 598(2) of the Act which allows the Commission to make an interim decision in relation to a matter before it.

[3] Mr Tucker was formerly employed by the State Revenue Office (SRO).

[4] Mr Tucker's employment with the SRO was terminated on 18 July 2019 for serious misconduct. Following his dismissal Mr Tucker made application to the Fair Work Commission (Commission) for a remedy for unfair dismissal pursuant to section 394 of the Act (Application).

[5] Mr Tucker filed his materials in support of the Application on 19 September 2019. On 3 October 2019 the SRO made application for confidentiality orders pursuant to section 594(1) of the Act (Non-Publication Application). The SRO contended[2] orders ought be made be as the material filed by Mr Tucker contained sensitive and confidential taxpayer information, disclosure of which breached his obligations as a former tax officer pursuant to the provisions of the Taxation Administration Act 1997 (Vic)[3] and irrelevant, scandalous and vexatious argument and allegations which are highly prejudicial to the SRO, its officers and persons who are not parties to the proceeding.[4]

[6] On 15 October 2019, following the filing of material by both parties, Commissioner Bissett heard the SRO's Non-Publication Application and made the Order. The Order was in the following terms:

"[1] Pursuant to s.594(1) of the Fair Work Act 2009, the Fair Work Commission (Commission) orders that:

a. all witness statements and the annexures thereto and any written submissions filed in this proceeding (Filed Documents) be marked confidential and access thereto shall be restricted to the Commission, the parties and their legal representatives;

b. no person shall publish the Filed Documents other than to the Commission, the parties and their legal representatives; and

c. the transcript of the proceeding be marked confidential and not be published other than to the Commission, the parties and their legal representatives.

[2] This shall come into force from 15 October 2019 and shall remain in force until varied or otherwise by the Commission."[5]

[7] The SRO filed its materials in the Application on 21 October 2019.

[8] The matter was listed for hearing on 20 and 21 November 2019. On 13 November 2019, Mr Tucker's legal representative advised the Commission that the parties had reached an in-principle settlement. Accordingly, the hearing was vacated and a notice of listing reflecting this was sent to the parties on 15 November 2019.

[9] On 12 December 2019, Mr Tucker wrote the Commission seeking that the Order be set aside. On 17 December 2019 the SRO advised the Commission that the matter had been settled, it strongly opposed the Set Aside Application and requested to be heard.

[10] The matter was listed for mention before me on 13 February 2020 (Mention). At the Mention both parties confirmed that while an in-principle agreement had been reached in November 2019, the final terms of settlement were still the subject of negotiation between the parties and a concluded settlement had not been reached.

[11] In accordance with directions, on 5 March 2020 Mr Tucker filed submissions in support of the Set Aside Application and the SRO filed their submissions on 26 March 2020.

[12] It was agreed that the matter could be determined on the papers without the need for a hearing.

[13] Mr Tucker seeks that the Order be set aside pursuant to section 598(2) or section 603(2)(b) of the Act.[6] In the alternative, Mr Tucker seeks that the Order be varied so as to allow him to use materials filed in the Application (Filed Documents) to report suspected improper conduct to the Independent Broad-Based Anti-Corruption Commission (IBAC) and various other regulatory authorities, for the purpose of any legal proceeding, review, grievance or complaint procedure in connection with or in relation to the Filed Documents and to seek legal advice.[7]

[14] Mr Tucker makes a number of submissions in support of the Set Aside Application. Firstly, Mr Tucker submits that the Order was made on an interim basis only and therefore the Commission should "put zero to minimal weight" on the fact that Commissioner Bissett granted the Orders.[8] Secondly, Mr Tucker submits that there is public interest in the Filed Documents.[9] Thirdly, the SRO's materials contain false and misleading statements. Fourthly, the unauthorised disclosure by the SRO of taxpayer information to the investigator into Mr Tucker's alleged misconduct. Fifthly, taxpayers named in the SRO's report and allegations ought be able to access the Filed Documents to be informed as to what occurred. Sixthly, the intended use of the Filed Documents and finally, that there is no basis for the continuation of the Order.[10]

[15] The SRO opposes the Set Aside Application. The SRO submits that there has been no material change in circumstances since the Order was made which justifies the setting aside of the Order.[11] It further submits that the Order does not prevent the Applicant from making a report to the IBAC and other regulatory authorities.[12] Finally, the SRO submits that the Filed Documents are in any event subject to an implied 'Harman' undertaking as they have not yet been received into evidence and therefore cannot be used by a party to a proceeding for a collateral purpose.[13] The SRO say that even if the Order were set aside Mr Tucker remains bound by the implied Harman undertaking.[14]

[16] At the Mention both parties agreed that the Application, while the subject of an in-principle agreement, had not been finally resolved. Accordingly, it appears uncontested that a binding settlement agreement has not been reached and there is therefore still a matter before the Commission.

[17] Section 589 is headed "Procedural and interim decisions". Section 589(2) provides as follows:

(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:

(4) This section does not limit the FWC's power to make decisions."

[18] A decision under section 589 may be made by the Commission on its own initiative or on application.[15]

[19] Section 603 is headed "Varying and revoking the FWC's decisions". Section 603(1) provides as follows:

(1) The FWC may vary or revoke a decision of the FWC that is made under this Act (other than a decision referred to in subsection (3))."

[20] The Commission may vary or revoke a decision under section 603 on its own initiative or on application.[16] Pursuant to section 603(3), the Commission's power to vary or revoke a decision under section 603 may not be exercised in relation to certain decisions, none of which are presently relevant.

[21] I am satisfied that the Order is a decision to which section 603 may apply.[17]

[22] In Grabovsky v United Protestant Association of NSW[18] Ross J set out the circumstances under which a decision may be varied or revoked under section 603.[19] The power to vary or revoke a decision under section 603 has generally only been exercised where there has been a change in circumstances such as to warrant the variation or revocation of the original decision, or where the initial decision was based on incomplete or false information, fraudulently procured or otherwise.

[23] As to Mr Tucker's primary position that the Order ought not have been made at all, I note that Mr Tucker opposed the SRO's Non-Publication Application. Commissioner Bissett determined it ought be granted in part. Mr Tucker did not appeal that decision as he had an ability to do.

[24] Mr Tucker submits that the Order was made on an interim basis only and therefore the Commission should "put zero to minimal weight" on the fact that Commissioner Bissett granted the Orders.[20] I reject that submission. It is clear that the Order was made on an interim basis only.[21] In making the Order Commissioner Bissett said the following:

"... In terms of the question of orders for non-publication, it's my intention to grant the orders on an interim basis only. I think that there are some matters in there that require fulsome consideration, and I think that that can be done more appropriately by the Presiding Member, who can hear argument and will have access to all of the materials and the evidence and will be able to make a much better, clearer call on that. I am concerned, and I say this purely on an interim basis, Mr Tucker, the submissions of the respondent raise some issues. I'm not prepared at this point to leave the file potentially open, if I can use that expression, and for that reason I will issue the interim orders in the form sought by the state with respect to paragraphs (a), (b) and (c)."[22]

[25] I also consider it clear from the above that Commissioner Bissett made the Order until the matter could be considered further by the Presiding Member at the hearing of Mr Tucker's substantive unfair dismissal application, when all the materials and evidence were available and a more fulsome consideration could be given to them.

[26] Given the vacation of the hearing following the in-principle agreement reached between the parties, this has not occurred. The Filed Documents have not been received into evidence, they do not form part of the record of the hearing and the Commission has not ruled on the SRO's objections to Mr Tucker's materials. Therefore, the circumstances which pertained at the time the Order was made have not materially changed, save that the SRO has now also filed materials upon which it intends to rely. As such, I do not consider there has been a change in circumstances such as to warrant variation or revocation of the Order.

[27] Mr Tucker's remaining submissions in support of variation or revocation of the Order appear to be premised on assertions that the SRO has itself improperly used and disclosed taxpayer information and otherwise engaged in other improper conduct in breach of its obligations. Mr Tucker seeks to make a complaint or report to relevant regulatory authorities, including IBAC, regarding that conduct and as such, says variation or revocation of the Order is warranted. He says that taxpayers ought be able to access the Filed Documents so that they can pursue claims against SRO. I reject those submissions. Firstly, I do not consider they provide a recognised basis, as set out in Grabovsky and endorsed by the Full Bench in Health Services Union - Victoria No. 1 Branch, upon which the Order ought be varied or revoked under section 603. They do not disclose that the original decision was determined on incomplete or false information. Secondly, even if it be the case that the SRO has engaged in the conduct alleged by Mr Tucker, the Order does not in any way preclude Mr Tucker or any other person, including those who have filed witness statements in the Application, from talking to, or making a complaint, report or statement to any relevant regulatory authority. Accordingly, I decline to make the orders sought pursuant to section 603 of the Act.

[28] In these circumstances it is not necessary for me to determine whether the Filed Documents are subject to an implied Harman undertaking.

[29] Section 589(2) of the Act allows the Commission to make interim orders. I accept that the orders sought by Mr Tucker are interim, in the sense that they are not a final decision and are interlocutory in nature. However, I incline to the view that the application made by Mr Tucker, properly considered, is an application to vary or revoke the Order pursuant to section 603 of the Act, rather than an application for an interim order under section 589(2). Section 603 is expressly directed to that which Mr Tucker seeks. As a general proposition, where a particular procedure is designed to achieve something, other procedures are impliedly excluded. As such, I consider Mr Tucker's application is most properly an application under section 603 of the Act, rather than section 589(2). However, should I be wrong in that and the application may also be properly brought under section 589(2), for the reasons set out above I also decline to make the orders sought pursuant to section 589(2) of the Act.

[30] Accordingly, the application to vary or revoke the Order is dismissed.

[6] Applicant's submissions, dated 5 March 2020 at [5]

[11] Respondent's submissions, dated 26 March 2020 at [35-42]

[15] Fair Work Act 2009, section 589(3)

[16] Ibid, section 603(2)

[17] Ibid, section 598

[18] [2015] FWC 5161

[19] Ibid at [38] endorsed in Health Services Union - Victoria No. 1 Branch, Diana Asmar and Nick Katsis [2015] FWCFB 5621 at [25]

[20] Applicant's submissions, dated 5 March 2020 at [9-15]

Printed by authority of the Commonwealth Government Printer