Andrea Ann Mather v Police Association of South Australia [2024] FWC 553

1 Fair Work Act 2009 s.394 - Application for unfair dismissal remedy Andrea Ann Mather v Police Association of South Australia (U2023/9708) DEPUTY PRESIDENT ANDERSON ADELAIDE, 1 MARCH 2024 Application for an unfair dismissal remedy – procedure – case file management [1] This decision concerns a procedural matter arising from application U2023/9708 (unfair dismissal application). [2] The unfair dismissal application had been set down for hearing on 7, 8 and 9 February 2024 on a strike-out application by the respondent and on an application to amend by the applicant. Directions had been issued on 23 November and 20 December 2023. [3] Permission had been granted for both parties to be represented. [4] The unfair dismissal application was discontinued on 16 January 2024 (confirmed by the applicant’s representative on 17 January). [5] On 31 January 2024 (via its solicitors) the respondent applied for the Commission case file documents to be marked as follows: “private and confidential - no access without allowing the parties a fair opportunity to be heard on any application for access and without an Order of the FWC”. [6] The parties were provided an opportunity to put written submissions or be heard on the matter. Submissions were made. No party sought a hearing. The matter was contested. The respondent sought an order or direction in the terms proposed. The applicant submitted that case file materials should be handled in the ordinary manner in accordance with Commission policy without a specific order or direction being issued. [7] On 6 February 2024, upon granting the applicant an extension of time to express a view on this issue, I rejected a request by the respondent for an interim direction pending determination of its application. [2024] FWC 553 DECISION -- 1 of 4 -- [2024] FWC 553 2 Consideration [8] On 1 February 2024, upon receipt of the respondent’s application the Commission indicated to the parties as follows:1 “The Deputy President indicates that case file documents in this matter are dealt with in accordance with the Commission’s general policy concerning handling of case file records. In accordance with the policy and having regard to Direction [8] issued by the Deputy President on 23 November 2023 (concerning publication of documents in this matter), the Deputy President’s provisional view is that it is appropriate that the Commission case file documents be marked “private and confidential – no access to a person other than a party except by order or direction of the Commission made after giving the parties an opportunity to be heard”. [9] The grounds on which the respondent makes the application are twofold; to continue the purpose of an interim direction made by the Commission on 23 November 2023; and that the Commission’s existing case file management policy is under review and “the FWC could change its access to case file documents policy as a consequence of such a review”.2 [10] Conversely, the applicant submits that the Commission’s policy “has been effective to date and cannot see any reason why a matter such as this should be treated any differently than other matters that have come before the tribunal”.3 [11] Directions [8] and [9] made on 23 November 2023 were as follows: “[8] The FAIR WORK COMMISSION issues an INTERIM DIRECTION that, until the hearing and determination of the strike out application, the following materials before the Commission shall not be published by Andrea Ann Mather or PASA: The content of documents filed, tendered or submitted in the application U2023/9708; and The transcript or recording of any hearing relating to U2023/9708. [9] Direction [8] of these Directions is an Interim Direction only. Should Andrea Ann Mather seek to set aside this Interim Direction she should do so by written application to the Commission, copying PASA.” [12] The Interim Direction remained in force at the time of the discontinuance. [13] Upon the discontinuance being received, the Commission administratively closed its file. [14] I do not consider the fact that the Commission’s policy is under review to be a basis for making the direction sought. That ground on which the respondent makes this application is -- 2 of 4 -- [2024] FWC 553 3 rejected. The outcome of any such review is unknown, and guarding against possible outcomes from the review is speculative and not a basis for determining this application. [15] I now turn to the remaining ground. [16] The Commission’s existing ‘Access to case file documents policy’ relevantly provides:4 “This policy is currently under review. Access to documents on a case file is at the discretion of the Commission. For open files, access to documents on a case file is subject to the consent of the presiding Member. For closed files, an application under the Fair Work Act 2009 and its accompanying file (including any material in the Commission’s case management system) are generally available for inspection by the parties to the proceedings and the public. Exceptions to this include: • unfair dismissal applications ... The above applications and the accompanying case file (including material in the Commission’s case management system) are not available for inspection, other than by a person who is a party named in the application (or their nominated representative). … For all case files, access will not be granted to any documents that are: • marked “private” or “confidential” by the Commission…” [17] Direction [8] made in this matter on 23 November 2023 was made on account of the fact that I was satisfied that material prejudice could arise from wider publication of matters (including contested facts) in advance of those matters being heard and determined. Given that all matters in issue remain undetermined on account of the discontinuance, that same rationale applies in respect of third party access or publication arising from third party access to archived case file records. [18] However, it is apparent that existing Commission policy requires unfair dismissal applications to be dealt with in accordance with the exception identified above. In other words, under the existing policy the case file records in matter U2023/9708 are “not available for inspection, other than by a person who is a party named in the application (or their nominated representative)”. -- 3 of 4 -- [2024] FWC 553 4 [19] The effect of this is that no person other than a party to application U2023/9708 or their representative is able to request or access the case file records. [20] This being so, I do not consider it necessary to issue a direction that the file be specially marked as sought (“private or confidential with no access to a person other than a party except by order or direction of the Commission made after giving the parties an opportunity to be heard”) because that is the current effect of Commission policy when applied to this matter. Having further assessed the policy and considered the submissions of the parties, it is not necessary to issue a direction in line with the provisional view expressed on 31 January 2024. The underpinning rationale for direction [8] which had informed the provisional view is not compromised by the application of the Commission’s existing policy. [21] Accordingly, the respondent PASA’s application for a direction concerning the management of case file records in matter U2023/9708 is dismissed. [22] I make one concluding observation. No party submitted that the Commission as currently constituted is without power to make the direction sought. Whilst it is arguable that a discontinuance renders the Commission as currently constituted functus officio and that any such direction could only be made either administratively by the General Manager or only following a formal application to reopen the matter being granted, the better view and the one which I adopt is that the direction sought would be (if it had been granted) incidental to the administrative act by a Member of closing the case file, and thus within the purview of the Member to whom the file had been allocated. DEPUTY PRESIDENT Printed by authority of the Commonwealth Government Printer <PR771964> 1 Email ‘Chambers – Anderson DP’ 1 February 2024 2 Application 31 January 2024 3 Submission 19 February 2024 4 Information about the Access to Case File Documents Policy can be found at https://www.fwc.gov.au/about-us/legal-and- freedom-information/privacy -- 4 of 4 --