Potential Embarrassment not Sufficient to Warrant Confidentiality
Keeping potentially uncomfortable allegations about employee behaviour, or the type of business they work in, is difficult for employers and will be weighed against the long standing principle of open justice, the Fair Work Commission has said.
In a case about bullying allegations, a company has been thwarted in its attempts for suppression of the company’s name and the names of the employees concerned. The company argued that some of the allegations were potentially very damaging to reputations not least because some of them included claims of criminal conduct.
However the Commission refused the request, making it clear that only if during the hearing of the substantial issues it became absolutely apparent that allegations were potentially defamatory, would it consider any form of suppression orders.
The Commission relied on the longstanding legal principle of open justice which is that the administration of justice relies on open court and prevents powerful litigants from special treatment, to protections not normally afforded to ordinary parties before the courts/tribunals.
This case underscores another good practical reason why it is prudent to act quickly and decisively on internal problems like bullying. Employers do not need their names broadcast as workplaces where bullying (or other odious activity) takes place. There is nowhere to hide. Other businesses, prospective employees and the public at large (customers) can easily search and find the details of court proceedings on government websites now. It’s publicity no one needs.