Bradley Alan Fisk v State of Victoria (Department of Health)

[2022] FWC 482

[2022] FWC 482

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.365—General protections

Bradley Alan Fisk
v

State of Victoria (Department of Health)

(C2021/4254)

COMMISSIONER MCKINNON SYDNEY, 4 MARCH 2022

Application to deal with contraventions involving dismissal – apprehension of bias – jurisdictional objection to be dealt with on the papers.

1. On 20 July 2021, Bradley Alan Fisk applied to the Commission to deal with a general protections dispute involving dismissal under Part 3-1 of the Fair Work Act 2009 (Cth). The application was made against the State of Victoria (Department of Health), relating to his employment in a hotel quarantine unit formed as part of Victoria’s response to the COVID-19 pandemic. The Department objects to the application because it says that Mr Fisk has not been dismissed.

1. Mr Fisk objects to my dealing with the application because, in summary:

1. I should not have accepted documents filed late by the Department and instead should have made orders in his favour without further ado.

2. I should not have allowed the Department to fail to produce evidence required under orders to produce, or to make false and misleading statements.

3. In proceeding with a mention of the matter on 29 October 2021 without his participation, I colluded with the Department.

4. Either I or a member of the Commission staff tampered with the audio recording of the mention on 29 October 2021.

5. I have been offered a bribe by the Department to resolve the case in its favour.

1. I take these objections by Mr Fisk to be grounds for an application that I recuse myself for reasons of apprehension of bias.

1. I reject each of the serious allegations made by Mr Fisk at points 3, 4 and 5 above. They are made without foundation and are insulting. They raise the question of whether Mr Fisk has committed an offence under section 674 of the Act. Mr Fisk has been given an opportunity to withdraw them and has not done so.

1. I also reject the submission at point 1 above. The Department has been late in filing documents on occasion. In each case, the delay was only short. There was no apparent disadvantage to Mr Fisk, including in circumstances where a commensurate extension of time was provided to him. This is an ordinary approach to the receiving of evidence in the Commission.  No fair-minded lay observer would reasonably apprehend that I might not bring an impartial mind to the resolution of the dispute for that reason.

1. As to point 2, the Commission does not “allow” parties to contravene its orders. It issues orders and expects those to whom the orders are directed to comply with them. If orders made by the Commission are not complied with, enforcement can be sought through the courts.

1. Whether the Department produced all relevant documents as required, or made false and misleading statements in that regard, are matters that could be considered and dealt with at a hearing of the jurisdictional objection. They are matters that have not yet been considered because procedural fairness requires the parties to be given an opportunity to be heard, and attempts to provide that opportunity have been impeded by Mr Fisk’s failure to participate in the proceeding since at least 11 November 2021, discussed further below. Instead, the matter has barely progressed since conciliation failed to resolve the dispute in August 2021. In the circumstances, a fair-minded lay observer would not reasonably apprehend that I might not bring an impartial mind to a resolution of the dispute.

1. To the extent that proceedings have occurred in the absence of Mr Fisk, it is a matter of his own making. On each such occasion since 29 October 2021 when the matter has been listed either for mention or for hearing, Mr Fisk has been given advance notice of the listing. On those occasions where Mr Fisk has not attended, attempts have been made to contact him at the scheduled time. His participation, such as it has been, has been limited to providing, or offering to provide, medical evidence to support his absence shortly before, or shortly after, a proceeding has concluded.

1. The medical evidence provided by Mr Fisk is yet to satisfy me that he either is, or was, unable to participate in the proceedings. The evidence is of a kind that attests to him being “unfit to attend legal proceedings” without more, which must be seen in the context of his failure to communicate with Chambers ahead of time, his failure to answer the phone when called by the Commission at the time of the proceeding, and yet his ability shortly afterward to contact my Chambers by email and/or telephone to find out what happened and to proffer explanations for his absence on medical grounds.

1. Notice of the most recent hearing (on 3 March 2022) was sent to the parties on 7 February 2022. On that date, the parties were advised that any request for an adjournment was to be provided as soon as possible after the relevant circumstances arose and accompanied by supporting evidence. The parties were also advised that requests received on the day of hearing would not be granted without reasonable excuse. Despite these directions, no request for an adjournment was made by Mr Fisk, and no supporting evidence was provided. In a telephone call to Chambers approximately 45 minutes after the hearing was scheduled to commence, Mr Fisk advised that he was seeing a doctor later that day and would provide a medical certificate. He has not done so. Mr Fisk’s conduct in this regard is unacceptable. It was in disregard of the directions issued on 7 February 2022 and has meant that both the Commission and the Department have expended unnecessary time and resources in the matter in circumstances that could easily have been avoided by Mr Fisk making a medical appointment ahead of the hearing and/or by earlier communication with Chambers.

1. For these reasons, and having reviewed the materials on file, there is simply no basis for a finding that a fair-minded lay observer would reasonably apprehend that I might not bring an impartial mind to the resolution of the dispute. The application that I recuse myself is dismissed.

The jurisdictional objection

1. Fairness and the efficient conduct of proceedings requires that the Department’s jurisdictional objection to the substantive application be dealt with. I will deal with the question of whether Mr Fisk was dismissed from his employment on the papers. Any objection to this course is to be provided to Chambers by no later than Monday, 7 March 2022 at 4.00pm, together with reasons and any relevant supporting materials.

COMMISSIONER

Appearances:

C Charalambous of Maddocks for the respondent.

Hearing details:

2022.
Sydney (by video):
March 3.

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