Employee rights denied by suppression orders
Suppression orders are a rare and often controversial measure applied to unfair dismissal and adverse action cases. They can involve concealing from the public the identities of individuals, evidence or even entire hearings and the final decision of a case. I remember an unfair dismissal arbitration I run for a client who was based at a overseas naval facility. The employer applied for a suppression order at the Fair Work Commission and got it on the basis of national security. I think it was more about the company protecting its commercial interest and any embarrassing outcomes or comments by the Fair work Commission. I didn’t appeal the decision, I probably should have. This decision always stayed with me, I thought its overdue to write about the issue. So Employee rights denied by suppression orders is well worth examining.
Advocates of suppression orders argue that they’re necessary to conceal sensitive information. For instance, relating to national security or law enforcement. But in many cases, suppression orders are used by employers to conceal their corrupt behaviour and poor treatment of employees. They provide a way for employers to avoid being held accountable by the public. This has a damaging flow on effect for Australian workers and the rest of society.
This also this leads to quality employees not wanting to work in these types of organisations that have this toxic workplace practice. When these organisations by nature of their functions they undertake need the very best personnel to protect Australia and the communities interest.
The idea of open justice
Fair Work Commission (FWC) hearings and Australia’s courts operate on the idea of open justice. This dictates that court proceedings and rulings should be made available to all. This transparency is a fundamental tenet of democracy. The rule of common law and a fair trial – all of which guide Australia’s legal system.
The idea of open justice as applied to Australia’s courts was articulated by Gibbs J in the case Russell vs. Russell (1976): “… the public administration of justice tends to maintain confidence in the integrity and independence of the courts. The fact that courts of law are held openly and not in secret is an essential aspect of their character.”
Critically, open justice allows for those who’ve broken the law to face the consequences of their actions. Not only through a court-ordered penalty, but also by being held accountable by the public. Facing public scrutiny and criticism is a critical incentive for individuals and organisations to refrain from breaking the law. And it’s therefore the vital mechanism by which society improves.
The problem with suppression orders
Australia’s common law system does however allow for open justice to be limited in certain circumstances. Historically, suppression orders have been placed on legal hearings to protect the identity of police informers or undercover police officers. Also, in matters concerning national security and secret technical processes. Victims of blackmailing have also had their identities concealed.
It’s understandable that sensitive information is concealed in circumstances like these. But the problem with suppression orders is that they can be used to protect those who have broken the law. For instance, to conceal the names of those responsible for the unfair treatment of an employee, as the Australian Criminal Intelligence Commission (ACIC) did in a recent adverse action case.
Court protects identities of those responsible for “sham” redundancy
In August 2022, ACIC won broad-ranging suppression orders to conceal the names of staff allegedly involved in bullying a former IT officer and making him redundant. In 2020, the IT officer had made a stop bullying order application (F72) with the FWC. The application de-identified the individuals involved and was ultimately rejected by the FWC.
The IT officer was later deemed as “excess” by ACIC, making him redundant. He subsequently launched an adverse action claim with the FWC. Arguing that his “sham” redundancy was motivated by the stop bullying order application.
ACIC cites “safety risks” for suppression of staff identities
During his adverse action hearing at the Federal Circuit and Family Court, ACIC’s COO and chief counsel requested that proceedings be placed under a suppression order. This was to protect ACIC staff likely to be identified during the proceedings.
“[The chief counsel] further outlined, again necessarily in somewhat general terms, her concerns about the safety risks to those staff (and their families) who will be identified in the course of this litigation,” Judge Warwick Neville said.
The IT officer, however, argued that there wasn’t any increased risk of revealing the identities of his former colleagues. And he said that a suppression order would effectively be redundant. This was considering that their identities could easily be looked up on LinkedIn. The IT officer further argued that the hearing should be made public so as not to allow ACIC to continue acting “imperiously.”
Judge deems IT officer was seeking “pay-back”
When considering a suppression order, the presiding judge must carefully weigh up the pros and cons of an order. They must discern whether there’s a legitimate need for the suppression order to protect certain individuals or an organisation. This must be weighed up against the potentially harmful effect that concealing information from the public poses to open justice and society itself.
Judge Neville’s reasoning for considering ACIC’s suppression order were “two-fold.”
“the personal protection and safety of its officers,” and second, “the potential risks to its responsibilities on behalf of the Commonwealth regarding national and international security.”
“Regarding the second aspect, the concern of the Commission is the risk of evidence or knowledge concerning the Commission’s methodologies, systems and processes becoming known, available or otherwise accessible most especially by groups or individuals who are currently, or who are likely to be, the subject of investigation”.Stated Judge Neville
“Concerning the former, the personal protection of employees arises from the risk of them being, as it were, potentially targeted, for example, by organized criminals.” Judge Neville also outlined that the suppression order was necessary to protect ACIC’s role in liaising with international agencies.
“For my part, arguments arising from, or relating to, international security operations are, almost by themselves, sufficient for the Orders sought to be made,” Judge Neville said. Judge Neville also considered the motivations of the IT officer in attempting to prevent the suppression order. The judge stated that the IT officer had “candidly” told him that he wanted ACIC staff to be named so they would be held accountable.
“There was a certain level of ‘pay-back’ discernible in [his] understandable concern about how he was treated (in his view) by the Commission when he was employed by it,” Judge Neville said.
Court orders adverse action case to be conducted in private
Judge Neville ultimately ordered for the identities of ACIC employees to be concealed. He also ordered that “any hearings in the proceeding will be conducted in private.”
“Evidence and material lodged in the proceeding, including oral evidence given during any hearing in the proceeding, concerning [ACIC’s] systems and processes are not to be disclosed,” said Judge Neville.
Why suppression orders are bad for society
The most powerful arguments against suppression orders typically highlight how they hinder open justice. Also, their role in concealing the corrupt behaviour of powerful individuals or organisations. It’s understandable that suppression orders may be needed to protect the identities of those responsible for ensuring national security. But doing this comes at a huge cost for society.
Without public accountability, national security agencies like ACIC can hide any ill treatment of its employees behind a cloak of secrecy. This means that it has less incentive to rectify such behaviour. Given that they know they won’t have to face public scrutiny and criticism.
Suppression orders can also set a dangerous precedent for society at large. Because employer misconduct is never shared with the public, other organisations are denied critical guidance on how not to treat their employees. Specifically, they are denied a real-world example of how employer misconduct can lead to penalties. As well as damaging public scrutiny and criticism. They will therefore never be able to heed these lessons.
Open Justice must prevail
Open justice and public accountability are the crucial mechanism by which individuals and organisations in society can improve. And suppression orders essentially remove this mechanism.
Are suppression orders outdated?
Another argument against suppression orders is that they’re outdated in today’s digital world. Most of us are now on some form of social media. If you’re personal details aren’t on Facebook, it’s likely they’re on LinkedIn or perhaps even your employer’s website.
The fact that so many of us have made our personal information publicly available online means that suppression orders can often be easily circumvented. The de-identification of those involved in an FWC hearing. Or court case is often redundant when you can easily search their full details on Google or social media.
This is what the IT officer argued in attempting to quash ACIC’s suppression order. And his argument is shared by legal scholars. In 2017, an independent review into Victoria’s use of suppression orders by retired judge Frank Vincent called for the state to take a more “real-world” approach. Vincent found that suppression orders were being easily breached online through social media.
“Quarantining a jury from all outside influences and information has always been extremely difficult. However in many cases, it is now virtually impossible due to ease of access through the internet and the rapidly expanding impact of social media,” Vincent wrote.Justice Vincent
State government reforms of suppression orders have already begun
Some state governments have already begun reforming their laws around suppression orders. Based on the recommendations of Vincent, in 2019 Victoria passed the Open Courts and Other Acts Amendment Bill 2019. Which aims to ensure open justice and the disclosure of information in the state’s courts.
“These reforms will significantly enhance transparency in our courts by making it abundantly clear that suppression and closed court orders should only be made when absolutely necessary,” said Victorian Attorney-General Jill Hennessy. Meanwhile, in NSW, the push to reform its laws around suppression orders has just begun. In July, NSW Attorney General Mark Speakman tabled a 600-page report by the NSW Law Reform Commission in Parliament.
“In 2019 I asked the Law Reform Commission to consider whether NSW laws strike the right balance between promoting the administration of justice, the rights of victims and witnesses, privacy, confidentiality. Also public safety, the right to a fair trial, national security, commercial and business interests, and the public interest in open justice,” said Attorney General Speakman. The report makes 156 recommendations about the laws governing the disclosure of court and tribunal information, court suppression orders. As well as who has access to information and in what circumstances.
How suppression orders can conceal unfair dismissal decisions
Another example of how suppression orders can be used in questionable ways by employers hit the headlines last year. And perhaps we shouldn’t be surprised that it involved one of Australia’s leading banks. Who following the Royal Commission into the finance sector, have in recent years attracted their fair share of negative press.
The case involved Westpac, who in 2020 had dismissed its long-serving home finance manager Averil Devine for “loss of trust and confidence.” Amazingly however, the bank claimed that it couldn’t tell her the exact reason why she was dismissed. Westpac simply stated that this was due to secrecy provisions under an unnamed law and requests by an unnamed regulator.
Westpac seeks to be “judge, jury and executioner”
When Ms Devine made an unfair dismissal claim against Westpac last year, the bank sought a suppression order to keep the hearing private. Also, to ensure the reasons for Ms Devine’s dismissal remained a secret. This was an unprecedented request in the history of FWC unfair dismissal cases.
Westpac’s bid to cloak proceedings in a veil of secrecy drew criticism from Finance Sector Union national assistant secretary Nathan Rees. He accused the bank of appointing itself “judge, jury and executioner”. further added the union had never come across a case like it. “It’s not appropriate for an organisation of this size,” said Mr Rees. “As inconvenient as it might be for Westpac, the presumption of innocence is a fundamental human right and that’s the position the FSU will be taking in these proceedings.”
Westpac is granted a private unfair dismissal hearing
While Fair work deputy president Geoff Bull said that Westpac’s request would result in a “grave absence” of procedural fairness, he granted it a private unfair dismissal hearing. This was so the bank could reveal to the FWC the reason for Ms Devine’s dismissal.
As part of the suppression order, deputy president Bull said he wouldn’t publish “any protected information” related to the unfair dismissal decision. This included “information concerning the legal and/or factual basis for the termination of [the manager’s] employment. The identity of the regulator and the relevant legislation governing the regulator; and any documents containing information provided to or received from the regulator by [Westpac]”.
“The reasons for the commission’s decision to dismiss Ms Devine’s application will remain confidential to the parties,” deputy president Bull said. In November last year, the Fair work ruled that Ms Devine’s dismissal wasn’t unfair. However, it kept the reasons for her dismissal a secret, as per Westpac’s suppression order. In response to the outcome, national secretary for the Finance Sector Union (FSU) national secretary Julia Angrisano said that it was “carefully considering an appeal.”
The dangerous precedent suppression orders set
Westpac’s suppression order to conceal the reasons why Ms Devine was dismissed is unprecedented. And it could set a very dangerous precedent for Australian workers.
Prior to being dismissed, the Fair Work Act 2009 dictates that an employee must be provided in writing the reason for their dismissal. An employee’s right to know why they were dismissed is a central tent of our workplace relations laws. It’s an essential part of the procedural fairness that Australian workers are legally entitled to.
Often, decisions in unfair dismissal cases hinge on whether procedural fairness was provided to the employee. That is, if they were given a fair and reasonable opportunity to be heard before a disciplinary or performance decision is made. An employee must be given the chance to defend themselves or raise any extenuating circumstances relating to the allegation made against them.
If employers can invoke an unnamed law to keep the reason for dismissal from an employee, like Westpac did, it denies them their fundamental right to procedural fairness. is concerned that a dangerous precedent has been set by Westpac’s suppression order.
“The union is concerned at the potential for employers to rely on unidentified legal obligations to dismiss workers without disclosing the reasons for dismissal at or before the time of dismissal.” “The ability for a worker to understand the reason for their dismissal and be given an opportunity to respond to those reasons is fundamental to a fair process.”FSU national secretary Angrisano
Suppression orders – should they be outlawed?
We’ve already seen Victoria reform their laws around suppression orders, and NSW is set to follow suit soon. But do these reforms go far enough to protect what should be, in a democratic nation, the inviolable principle of open justice? The question is: should suppression orders be outlawed entirely?
Of course, there are circumstances when suppression orders are necessary, as we outlined earlier. Rather than outlawing them entirely, federal and state leaders must fully consider the harmful effects that they can have on society when used for the wrong reasons by employers. And reform must surely follow to prevent such misuse from occurring.
Alternatively some dismissed or aggrieved employees may want to name employees or threaten to name them in public for no other purpose than in extract an settlement from an ex employer. This has the possibly of an aspect of blackmail. Employees have to carefully consider the strategy they are adopting with their case.
Conclusion to: Employee rights denied by suppression orders
If you have experienced mistreatment at work or had your employee rights denied. Or feel that you were unfairly dismissed, our team at A Whole New Approach can help. For the last 20 years, we’ve assisted thousands of workers to lodge use the Fair Work instruments available to them to seek compensation or redress. We’re unfair dismissal experts and can help guide you through the process of making a claim with the FWC. We are proud of our staff and the outcomes they get for our clients.
Call us today on 1800 333 666 for a free and confidential conversation.
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