Should FWC's embarrassing decision be confidential?

Associate professor investigated for 'serious misconduct' involving student

Should FWC's embarrassing decision be confidential?

The Fair Work Commission (FWC) has denied the request of an employee to “de-identify” himself and his employer in a published decision.

The employee argued that the news media might “sensationalize” his case, which could “negatively affect his return to work.”

The employee was an associate professor employed by a university in its maths and science institute. He was dismissed following an investigation that found he had engaged in “serious misconduct” involving a student. The matter came before the FWC, which ruled that the incident was not “serious misconduct” because “it was wholly consensual and encouraged by the student.”

Ruling that the dismissal was unfair, the FWC ordered that the employee be reinstated and paid lost earnings.

Request for confidentiality

The employee then argued that his return to work “would be impeded by unfairly wide dissemination of the decision,” and that “it is likely that the media will favour sensational headlines over a full, fair and nuanced report of the decision.”

He said some students and staff might “likely hold the incorrect view” about the involved parties. He also said the publication “may cause unrest in a highly politicised student population.”

As for the employer, it argued that “non-publication is inconsistent with the principles of open justice,” noting a provision on the Fair Work Act that states “unfair dismissal decisions must be published.”

FWC’s decision

In its decision on the matter, the FWC noted that the principle of open justice would usually be “the paramount consideration” in deciding whether a confidentiality order should be made, adding that there are limited exceptions to it: “Departure from the principle of open justice is only justified where the principle would, in fact, frustrate the administration of justice by unfairly damaging some material private or public interest.”

The FWC noted that the employee’s primary reason “appears to be embarrassment, distress and damage to his reputation.”

Finally, the FWC ruled that a nondisclosure order is not justified merely because allegations have been made which are “embarrassing, distressing or damaging to reputations.” It said the principle of open justice should be upheld.

Thus, the FWC rejected the employee’s request relating to the confidentiality order.

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