Alex Sandy Brown v Edge Early Learning
[2023] FWC 2332
•12 SEPTEMBER 2023
| [2023] FWC 2332 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.372—General protections
s.789FC - Application for an order to stop bullying
Alex Sandy Brown
v
Edge Early Learning
(C2023/4967)
Alex Sandy Brown
v
Ashleigh Lawson, Edge Early Learning Administration Pty Ltd
(AB2023/371)
| COMMISSIONER SIMPSON | BRISBANE, 12 SEPTEMBER 2023 |
Application for Recusal – Application dismissed
On 16 August 2023, Mr Alex Sandy Brown (Mr Brown / the Applicant) made an application pursuant to s.372 of the Fair Work Act 2009 (the Act) to the Fair Work Commission (the Commission) to deal with other contraventions dispute against Edge Early Learning (the Respondent).
On 29 August 2023, the Respondent filed a Form F8A Response, which was accompanied by a Form F53 Notice of Lawyer Acting.
On 30 August 2023, the Applicant filed submissions objecting to the Respondent being represented by a lawyer.
On 31 August 2023, my chambers sent correspondence to the Applicant which expressed that the objection was noted, and I would deal with it at the conference, which was listed at 10:00AM on 13 September 2023.
On 4 September 2023 the Applicant sent email correspondence which provided to the effect that it was procedurally unfair that a decision rejecting the application for legal representation had not been made given the Applicant’s objection, that Fair Work has given special favours to the Respondent and requesting the matter be reallocated a different and “impartial Commissioner as soon as possible.”
On 5 September 2023, my chambers sent the following email to the parties:
“Dear parties,
The Commissioner understands from the Applicant’s email of 4 September 2023 that he seeks that the Commissioner recuse himself from dealing with application C2023/4967 on the basis of bias.
The Commissioner will determine the Applicant’s application prior to the conference scheduled for Wednesday 13 September 2023.
If the Applicant wishes to file any further submissions in relation to the application for recusal, this is to be done by no later than 5:00PM Thursday 7 September 2023.
If the Respondent wishes to file any submissions in response to the application for recusal, this is to be done by no later than 5:00PM Monday 11 September 2023.
…”
This same day, the Applicant emailed my chambers raising concerns and noting that:
“…
In addition,
for Procedural Fairness,
we need to be able to respond to the other side's position,
and the instructions seem to be biased in the email of 10:46 a.m. September 5,
in that the Applicant must make 2 submissions,
then the Respondent can respond to that with new material,
and the Applicant then has no chance to respond,
to a much stronger party,
of a large company with an H R department
plus
outside lawyer
( like David vs Goliath X 2 )your instructions should allow the Applicant to respond to any new material,
and should be signed by an employee of Fair Work,
so we can have a chance of a Fair process
at "Fair" Work Australia
…”
(Original formatting and text kept)
Neither party filed any additional material relating to the Applicant’s request for recusal.
On 6 September 2023, the Applicant’s section 789FC application being AB2023/371, was allocated to me and my chambers sent email correspondence on 8 September 2023 which notified the parties of this and that I intended to list this matter concurrently for a conference with the section 372 application, which was listed on 13 September 2023.
On 11 September 2023 the Applicant sent the following email to the Anti-Bullying Team, who forwarded it to my chambers:
“Dear Fair Work,
I had made a complaint to Fair Work and asked that this NOT be assigned to Commissioner Sumpson (sic) as he has shown he is biased against me.
Fair Work is not 'Fair if an unrepresented person like me has to fight against:1-The HR department of a large company with almost 2000 staff, and
2- Their hired gun lawyer, who knows nothing about the workplace, and
3- A biased Commissioner Simpson, who has shown he favours the Respondent, and allows them to violate the Fair Work procedures for mattersCan you please simply assign this to someone else who is unbiased asap
(And avoid a wasted biased conference, and a needless appeal)…”
(Original formatting and text kept)
CONSIDERATION
Whilst the Applicant has not filed a formal application for recusal in the conventional way, it is sufficiently clear from his email correspondence that is what he is seeking. In such circumstances it is necessary to deal both the Applicant’s request that the section 372 application be reallocated to an “impartial Commissioner as soon as possible”, and the reasonable inference to be drawn from his request made to the Anti-Bullying Team that the section 789FC application not be assigned to me as I am biased against him, that he also seeks I recuse myself from dealing with the section 789FC application.
The basis for the Applicant’s allegation of bias is that I have not yet refused the Respondent’s application for permission to be represented, and instead I advised that I would determine the application for legal representation at the conference. On the subsequent section 789FC stop bullying application also being allocated to me, and the further allegation of bias being made, it is presumed it is made on the same basis as the allegation in connection with the section 372 matter.
Actual bias exists where a decision-maker has prejudged a case or acted in such a way as to show that the decision-maker had their mind made up and were not open to persuasion. I have not yet determined the issue of legal representation. There is no basis to conclude actual bias or a lack of impartiality in relation to the reason the Applicant asserts for bias or a lack of impartiality.
The test for apprehended bias is an objective one, being whether “a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide”.[1]
Similarly, as I have not yet determined the issue of legal representation there can be no basis to reasonably apprehend I may not bring an impartial or unprejudiced mind to either of the matters. The fact that I have adopted an approach of allowing the parties to make submissions, or further submissions on the issue at the commencement of the conference does not support a case of bias, or apprehended bias.
Further, it is not immediately apparent at this stage how the prospective determination one way or the other, of the application for permission to legally represented could, of itself give rise to a case of actual bias, or apprehended bias.
It should be remembered in respect of the conference tomorrow, the section 372 application is not a compulsory conference, and the Respondent’s attendance is on the basis that it agrees to participate. If conciliation with respect to the section 372 is unsuccessful, and the Applicant wishes to press the matter it will need to proceed to a court for determination. In respect of the section 789FC application, it is listed for conference only at this stage and the primary purpose of tomorrow is to seek resolution by agreement. Neither party has been required to produce sworn evidence in the section 789FC application at this stage.
The application for recusal in relation to the section 372 matter is dismissed. To the extent that it can be inferred that an application for recusal in relation to the section 789FC application has also been made, it is also dismissed.
COMMISSIONER
[1] Johnson v Johnson [2000] HCA 48, (11); cited in Ebner v Official Trustee in Bankruptcy [2000] HCA 63.
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