Ahern v Sisters of Charity and Holy Spirit Health Service Queensland Incorporating Mt Olivet Community Services Limited [2007] QIRC 6 (2007) 184 QGIG 43

[Extract from Queensland Government Industrial Gazette, dated 2 February, 2007, Vol. 184, No. 5, pages 43-44] QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Industrial Relations Act 1999 - s. 74 - application for reinstatement Elizabeth Lucia Ahern AND Sisters of Charity and Holy Spirit Health Service Queensland Incorporating Mt Olivet Community Services Limited (TD/2006/325) COMMISSIONER FISHER 18 January 2007 Preliminary issue - Respondent seeks suppression order - Industrial Relations Act 1999 s. 679 - Order sought in relation to residents and name of nursing home - Applicant consents to suppression of residents but not nursing home - Case law considered - Commission orders that residents names be suppressed permanently - Nursing home name to be suppressed while matter on foot and subject to further order by the Commission - Once decision released parties at liberty to apply to lift suppression on nursing home name. DECISION Ms Ahern has made an application for reinstatement with the respondent. She was employed in a particular nursing home operated by the respondent. During the course of the proceedings it will apparently be necessary to make reference to particular residents and to the nursing home in question. It seems also that certain conduct allegedly engaged in at the nursing home will be raised. Mr Muir, who appeared for the respondent, sought an order under s. 679 of the Industrial Relations Act 1999 that the names of residents and the name of the particular nursing home be withheld from release or search. Mr Greasley, who appeared for the applicant, consented to the order with respect to residents but opposed the breadth of the order in relation to the name of the nursing home. He was prepared to consent to an order suppressing the name of the nursing home while the proceedings were on foot but opposed any suppression thereafter. Mr Muir argued that it would not be in the public interest for the name of the nursing home to be in the public domain. He argued that publication had the potential to cause the residents and their relatives great distress. In support of his submissions Mr Muir referred to a decision of a Full Bench of this Commission in Queensland Nurses’ Union of Employees v Queensland Chamber of Commerce and Industry Limited and Ors (2000) 165 QGIG 131 where allegations had been made against a particular nursing home by a Queensland Nurses’ Union of Employees (QNU) witness. The Full Bench had made a suppression order under s. 679 in relation to the names of residents and the nursing home in question. The QNU then sought to re-open the matter. For particular reasons the Full Bench determined to continue the suppression order. Mr Greasley accepted that suppression of the publication of the name of the nursing home had merit while the proceedings were in train. However, he argued that once the proceedings had concluded the public interest would be best served if the name of the nursing home was made public. Mr Greasley referred to the legitimate community interest in the conduct of nursing homes and the right of the public to be informed about such conduct. In the decision relied on by Mr Muir the Full Bench, after considering relevant case law, expressed doubt whether s. 679(8) entitled the Commission in the public interest to prohibit publication of the name of the nursing home in question. However, the Full Bench was of the view that it was inappropriate for the name of the nursing home to be made public when the allegations had not been answered. On that basis the Full Bench decided that that the additional ground provided by s. 679(8)(b) had application, that is, if the Commission considers that persons, other than the parties to the cause, do not have sufficient legitimate interest in being informed of the matter. In the circumstances of this case I am also of the view that while the matter is on foot only the parties have a sufficient legitimate interest in being informed of it. Further, I consider that distress to residents and their families should be avoided at this time. Accordingly, I have decided to issue an order under s. 679 in relation to the publication of the name of the nursing home. However, it is arguable that after the proceedings have concluded and all relevant findings of fact have been made that persons, other than the parties, may have a sufficient legitimate interest in the matter. For that reason the order is made subject to further order by the Commission. This will allow either party, once the decision is released, to make application to the Commission for the suppression order to be lifted. -- 1 of 2 -- 2 As requested by Mr Muir and consented to by Mr Greasley the Commission shall also make the order under s. 679 in relation to the suppression of names of residents. That order will be a permanent order so as to protect in an ongoing way the residents’ confidentiality. G.K. FISHER, Commissioner. Hearing Details: 2007 17 January Appearances: Mr K. Greasley for the Applicant. Mr G. Muir (Employer Services) for the Respondent. Released: 18 January 2007 Government Printer, Queensland The State of Queensland 2007. -- 2 of 2 --