Bronze Hospitality Pty Ltd v Janell Hansson
[2019] FWCFB 3456
•21 MAY 2019
| [2019] FWCFB 3456 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604—Appeal of decision
Bronze Hospitality Pty Ltd
v
Janell Hansson
(C2019/2847)
DEPUTY PRESIDENT GOSTENCNIK | MELBOURNE, 21 MAY 2019 |
Appeal against decision [[2019] FWC 2911] of Commissioner Wilson at Melbourne on 1 May 2019 in matter number U2018/6613 – apprehended bias – appealable error identified – permission to appeal grant – appeal upheld – decision quashed – recusal application reheard by full bench – application dismissed.
Background
[1] Bronze Hospitality Pty Ltd (Appellant) employed Janell Hansson (Respondent) from 28 November 2017 as a casual employee and later from about 21 January 2018 as a full time employee. The Appellant dismissed the Respondent with effect from 7 June 2018. Subsequently the Respondent applied for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (Act). The application was allocated to Commissioner Wilson.
[2] The Appellant contended before the Commissioner that the Respondent was not protected from unfair dismissal because she had not at the time of dismissal served the minimum employment period, as required by s.382(a) of the Act. The contention was advanced on two bases. First, the Appellant contended the Respondent’s period of employment as a casual was not on a regular and systematic basis and that the Respondent did not have a reasonable expectation of continuing employment on that basis. In the result the period of service as a casual would not count as service for the purposes of calculating the minimum employment period.
[3] Secondly, the Appellant contended that it was, at the time of the Respondent’s dismissal, a small business employer within the meaning of s.23 of the Act with the consequence that even if the Respondent’s casual period of employment was counted in calculating the minimum employment period, she had not completed the minimum employment period of one year ending at the time of dismissal.
[4] By decision issued on 18 September 2018 1 (Jurisdiction Decision), the Commissioner rejected both contentions, concluding the Respondent was, during the initial period of casual employment, employed on a regular and systematic basis and that during the period she had a reasonable expectation of ongoing employment on that basis. Consequently the entire period of her employment between 28 November 2017 and 7 June 2018 counted as service towards determining the minimum period of employment. The Commissioner calculated the period of employment as slightly more than six months and one week.2
[5] As to the question whether the Appellant was a small business employer, there was a contest as to whether four employees described in the Jurisdiction Decision as the “Four Contested Employees”, who had worked some hours as casual employees for the Appellant, should be counted in the number of employees employed by the Appellant at the time of the Respondent’s dismissal. The Commissioner concluded that the Four Contested Employees should be counted and as a result, at the date of the Respondent’s dismissal, the Appellant did not employ fewer than 15 employees and so was not a small-business employer. 3
[6] The Appellant sought and was granted permission to appeal against the Jurisdiction Decision. In dealing with the substantive appeal a Full Bench of the Commission upheld the grounds of appeal directed to the small business employer conclusion and quashed that part of the Jurisdictional Decision. However the Full Bench rejected the ground of appeal directed to the counting of the Respondent’s period of casual employment and confirmed the Commissioner’s decision in that regard 4. The Appellant’s jurisdiction objection that it was a small business employer and that the Respondent had not served the minimum employment period of one year was remitted to the Commissioner for redetermination5.
[7] When the matter returned, the Appellant made application to the Commissioner that he recuse himself on the ground of apprehended bias. By reference to the Commissioner’s questioning of the Respondent during the jurisdictional hearing and conclusions reached in the Jurisdiction Decision, the Appellant advanced several grounds for recusal. In essence the Appellant contended that taken together, these grounds disclosed a proper basis for disqualification of the Commissioner for apprehended bias. By decision published on 1 May 2019 6 (Recusal Decision) the Commissioner refused the application.
[8] The Appellant has applied for permission to appeal and appeals the Recusal Decision. It also sought expedition. We granted an expedited hearing of the application for permission to appeal and we decided to hear the merits of the appeal together with that application because the redetermination hearing before the Commissioner is scheduled to proceed on 27 May 2019.
Consideration
Appeal grounds
[9] By its amended notice of appeal the Appellant sets forth three appeal grounds. The first contends the Commissioner failed to properly address the grounds for the application. The Appellant contends that the Commissioner did not deal with its submission that through his questions to the Respondent the Commissioner suggested that the Respondent had been told when she was employed as a casual, that if things went well she would be a permanent employee. The Appellant contended before the Commissioner that the manner in which the question was put involved a suggestion of an answer that would be favourable to the Respondent, and that it was out of the blue, that is, without any earlier factual foundation.
[10] The second appeal ground contends the Commissioner applied irrelevant principles to deal with parts of the Appellant’s concerns as to apprehended bias. The Full Bench had concluded that the Commissioner had made incorrect findings of fact in the Jurisdiction Decision by concluding at [8] and [25] that certain evidence had been given by the Respondent when it had not.
[11] The Appellant contends in essence that the Commissioner’s observation that those findings related to a ground of appeal which the Full Bench rejected and his reliance on that fact to reject the Appellant’s apprehended bias argument was erroneous. Similarly the Appellant contends that the Commissioner’s reliance on the fact the Full Bench had remitted the matter to him as a basis for rejecting the Appellant’s apprehended bias argument was also erroneous.
[12] The third ground of appeal concerns matters that arose after the Commissioner delivered the Recusal Decision. The Commissioner refused an application by the Appellant to vary an order for production of documents on the basis that the order should be directed to documents relevant to the employment of the disputed cohort of employees for the purposes of counting the number of employees in assessing the small-business employer issue. There are a number of employees of the Appellant whose inclusion in the number to be counted was apparently not in dispute. The Commissioner declined to vary the order. The Appellant contends that the Commissioner’s reasons for rejecting the Appellant’s application suggest that the Commissioner had already made up his mind regardless of the Appellant’s submissions.
[13] This ground is not properly a ground of appeal that arises from the Recusal Decision. Rather it is a matter which is put as a further basis for the apprehended bias application in the context of a rehearing by this Full Bench and we treated it as such.
Permission to appeal
[14] We are satisfied that the first and second appeal grounds identify an arguable case of appealable error and that they engage the public interest. The appeal grounds raise the prospect that the Commissioner did not deal with a material argument raised by the Appellant with the consequence that the Commissioner failed to take into account this consideration in arriving at the Recusal Decision. These grounds also raise the prospect that the Commissioner took into account an irrelevant consideration because he did not appreciate the argument that was being advanced as to the erroneous factual findings made in the Jurisdiction Decision. That applications for disqualification of a Member on the ground of apprehended bias should correctly be dealt with raises the public interest. We are therefore satisfied, in light of the arguable appealable errors identified, that permission to appeal be granted in the public interest and we do so.
The appeal
[15] We turn then to consider the appeal. In its submissions in support of the recusal application, the Appellant contended that “notwithstanding that the Applicant did not adopt the Commissioner’s suggestion in PN 46 nor give any evidence about permanent employment the Commissioner went-on to put an even-more leading question” 7. The Appellant then set out the passages of the transcript at PN 52 and PN 53 about which it complained 8.
[16] At PN 52 the Commissioner asked the Respondent: “the period as a casual employee, was it held out to you that if things went well you would be a permanent employee?” 9 The Respondent’s answer was not responsive to the question and, as the Full Bench noted in its decision, it certainly was not “yes”10.
[17] This aspect of the Commissioner’s questioning of the Respondent was part of the Appellant’s complaint that the Commissioner had involved himself in eliciting evidence in a manner that appeared designed to assist the Respondent’s case. The Commissioner deals with this aspect of the Appellant’s complaint as follows:
“[31] The First Apprehended Bias Ground deals with the subject of leading questions having been asked of Ms Hansson. The matter contended by Bronze Hospitality involves this exchange:
“THE COMMISSIONER: What I need you to do is just tell me how that employment came about, how you think it was regular and systemic and then how it changed into ongoing employment after the end of January 2018.
MS HANSSON: Okay. So when I applied for the job via Seek, I recall that pretty much the very next day I went in for a trial and received a casual position that night. The reason I believe it was regular and systematic was just due to the fact I was doing more hours sometimes as a casual than I even did as a full timer; up to sometimes 70 hours a week and no less than sort of eight fortnights at 65 hours per fortnight. That is when after about a month I got offered a full time position that ours a didn't take effect until 22 January, so a month after I was already offered the position.
THE COMMISSIONER: Who came to offer you the full time position?
MS HANSSON: At the time it was actually the original venue manager, Jarrod, but he was dismissed at the time and then I guess the next senior manager, Hamish Laird, then continued to give me the position.
THE COMMISSIONER: All right. Does that mean Jarrod said to you, "We want you now to work on a permanent basis?" Was he the first one to say that?
MS HANSSON: I was basically asked from the moment I set foot in The Harbour Terrace to basically be the reliable one. I would say, yes, from the moment I was there I was asked - it was going to be busy, it was Christmas period, school holidays, and to expect I would have a lot of hours. I think on one, even, fortnight I did something like 80 hours.
THE COMMISSIONER: All right. Are you saying then that when you started in November, you believed - well, let me turn this around. What did you believe about what would be occurring with your future employment?
MS HANSSON: Well, I would assume after starting at the beginning of the holiday period that I was going to expect regular work due to the fact that they told me it was their busiest period.
THE COMMISSIONER: All right. Am I correct in saying that you were told initially it was a trial period of employment?
MS HANSSON: No, just for the actual two hours I did originally.
THE COMMISSIONER: I see. That's what you meant. All right.”
[32] Bronze Hospitality also expressed a concern about the question posed in PN 46, first posed as a question about “November”, and then about Ms Hansson’s belief at the start of her employment.
[33] In context the questions asked of Ms Hansson were nothing more than an endeavour to elicit an understanding of her case. She said, with some degree of ambiguity in response to an open question that the person who offered her a full-time position was “Jarrod, but he was dismissed at the time and then I guess the next senior manager, Hamish Laird, then continued to give me the position”. What could be made of that response without clarification is open to debate. The questions that followed, “Does that mean Jarrod said to you, "We want you now to work on a permanent basis?" Was he the first one to say that?” were an endeavour to clarify the response. The proposition that Jarrod had been the person to offer Ms Hansson the full-time position had already been mentioned by her. The question referencing “November” was withdrawn and an open question put to Ms Hansson instead.
[34] A fair-minded lay observer would not find the exchange to be inappropriate or beyond the boundaries of legitimate intervention in order to proceed in a manner which is quick, informal and avoids unnecessary technicalities so as to get to the heart of matters as directly and effectively as possible, but without a failure to be seen to act in a manner that is fair and just to each party.
[35] Neither party was represented by a lawyer or paid agent and the material before the Commission was somewhat basic and not susceptible to a comprehensive narrative. Other than the framing of the question itself, Bronze Hospitality point to no other conduct that may lead to the view that Bronze Hospitality were not accorded a fair opportunity to present their case. The fair-minded lay observer listening to the exchange between myself and the Applicant would have been unlikely to discern an unreasonable or even unusual intervention in the case that she was endeavouring to put. The same observer would have noticed similarly leading questions being directed to Mr Thorpe as well as to Ms Hansson.
[36] To the extent that the foregoing interaction with the parties in the first instance hearing and within First Apprehended Bias Ground amounts to a failure to accord either party procedural fairness, such was not raised on appeal or found to be so by the Full Bench. Instead, the relevant grounds of appeal related to the analysis conducted in the decision and the subsequent findings made. The First Ground does not reasonably identify what it is said might lead me to decide the remitted case other than on its legal and factual merits; and does not provide an articulation of the logical connection between what has been said and the feared deviation from the course of deciding the case on its merits 11. [Endnotes omitted]
[18] It seems clear enough that the Commissioner did not deal with the Appellant’s complaint about the manner of questioning recorded at PN 52. This was a material submission with which the Commissioner was obliged to engage but did not do so. It is a matter that was plainly relevant to the Commissioner’s consideration of the Appellant’s recusal application. It was not addressed. The Commissioner was therefore in error and this ground of appeal is upheld.
[19] At [37] of the Recusal Decision the Commissioner deals with the second of the Appellant’s complaints as to apprehended bias. As is clear from the written submissions of the Appellant before the Commissioner, this complaint related to the manner of questioning of the Respondent by the Commissioner with the additional element that the Commissioner made findings of fact arising from the questions which were contrary to the evidence given. The Appellant had contended that taken together these matters raised apprehended bias 12. On this issue the Commissioner’s decision was as follows:
“[37] Bronze Hospitality’s Second Apprehended Bias Ground deals with the argument that there were incorrect factual findings against the evidence. The ground particularly refers to paragraphs [8] and [25] of the first instance decision. Those paragraphs may reasonably be regarded as connected with Appeal Ground 3, being an analysis of Ms Hansson’s working arrangements leading to the finding made in the first instance decision at paragraph [26] that Ms Hansson’s employment as a casual was regular and systematic. Given that Appeal Ground 3 was not upheld by the Full Bench, which found the conclusion that Ms Hansson’s employment as a casual was regular and systematic “was plainly open to the Commissioner”, with there being “an ample basis in the evidence for the Commissioner to conclude that Ms Hansson’s period of employment was on a regular and systematic basis” and it being a “correct conclusion”, no apprehension of bias reasonably arises from the those aspects of Bronze Hospitality’s submissions on the Second Apprehended Bias Ground dealing with paragraphs [8] and [25] of the first instance decision.” 13 [Endnote omitted]
[20] The Commissioner’s reasoning does not engage with the essential proposition advanced by the Appellant. It is not to the point that the Full Bench ultimately found that the Commissioner correctly concluded that the period of casual employment of the Respondent should be counted. The essential proposition that was being advanced by the Appellant was that taken together, the nature of the questioning of the Respondent by the Commissioner and the conclusion reached by the Commissioner on those matters contrary to the answers actually given, had the result that a fair-minded lay observer might reasonably apprehend that the Commissioner might not bring an impartial mind to the resolution of the question that the Commissioner was required to decide. In other words, the Appellant was contending that the manner of questioning and the erroneous fact-finding might suggest that the Commissioner was predisposed to the Respondent’s case and that he therefore might not resolve the question before him impartially. As is evident from the passage extracted from the Recusal Decision above, the Commissioner does not engage with that central proposition. In failing to do so the Commissioner was in error and this appeal ground is therefore upheld.
[21] These two matters provide a sufficient basis to uphold the appeal and we do so. It is unnecessary therefore to deal with the second aspect of the second appeal ground. It is appropriate to quash the decision and to rehear the application for disqualification for ourselves.
Rehearing of recusal application
[22] The principles relating to disqualification on the ground of apprehended bias are not seriously in contest. These principles are found in Ebner v Official Trustee in Bankruptcy 14 and were usefully summarised by Middleton J in Kirby v Centro Properties Limited (No 2)15 as follows:
“The principles respecting disqualification for apprehended bias represent a balance between two competing policy considerations, namely the maintenance of public confidence in the judicial system, by ensuring that the public perceive that cases are decided only by reference to the evidence before the court, and the need for judges to discharge their duties unless good reason is shown.
The apprehension of bias principle is stated in Ebner v The Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 at [6] where Gleeson CJ, McHugh, Gummow and Hayne JJ said (subject to qualifications relating to waiver and necessity):
“... a judge is disqualified if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide.”
The question is one of possibility (real and not remote), not probability. If there is an appropriate apprehension of bias, then the judge must disqualify himself or herself, no matter what case management considerations arise in the efficient and effective determination of a proceeding.
In Ebner, the majority in the High Court affirmed that the application of this test involves two steps. First, there must be identification of what it is that might lead a judge to decide the particular questions before him or her other than on the merits. Second, having identified the factors or circumstances that might influence a departure from meritorious decision-making, it is “no less important” to articulate the “logical connection” between those factors and the fear that the judge might not apply proper judicial method (that is, merits based decision-making) in resolving the controversy on the facts and the law (at [8]).
The mere fact that a judge has made a particular finding on a previous occasion does not necessarily give rise to an apprehension of bias. Nevertheless, in some situations previous findings may lead to disqualification and “what kind of findings will lead to relevant apprehension of bias must depend upon their significance and nature”: Gascor v Ellicott [1997] 1 VR 332 at 348 (Ormiston JA); see also at 342 (Tadgell JA with whom Brooking JA agreed); and see Cabcharge 5 at [34].
However, as the majority observed in British American Tobacco Australia Services Ltd v Laurie [2011] HCA 2; (2011) 242 CLR 283, the lay observer is the “yardstick”, and in this regard:
“... the lay observer might reasonably apprehend that a judge who has found a state of affairs to exist, or who has come to a clear view about the credit of a witness, may not be inclined to depart from that view in a subsequent case. It is a recognition of human nature” (at [139]). (Emphasis in original.)
The application of these principles does not change merely because a judge expressly acknowledges at the hearing of the first proceeding that different evidence may be led in the later proceeding, casting new light on the facts he or her had found in the previous proceeding. This is assumed to occur in any event. Such an acknowledgment does not necessarily remove the impression created by reading the earlier judgment that the views there stated might influence the determination of the same issue in a later judgment: see Laurie at [145] per Heydon, Kiefel and Bell JJ. [Emphasis in reported judgement]
These principles must be carefully applied. It has been said that: “... disqualification flows from a reasonable apprehension that the judge might not decide the case impartially, rather than that he will decide the case adversely to a party”: Cabcharge at [32]; Re JRL; Ex parte CJL [1986] HCA 39; (1986) 161 CLR 342 at 352 (Mason J).
Needless to say, disqualification of a judge by reason of prejudgment must be “firmly established”: Cabcharge at [25]; Re JRL at 352. Judges should not accede too readily to recusal by reason of apprehended bias.
To apply these principles in any given case is a matter of judgment and evaluation depending on the exact circumstances. Undoubtedly, the question of an apprehension of bias requires one to focus on the issues that the judge is called upon to decide - see eg British American Tobacco Australia Ltd v Gordon (2007) NSWSC 109 at [97] per Brereton J. No strict approach should be taken in identifying the legal and factual issues. The issues before a judge sought to be disqualified may well be different in some respects to those issues determined in the earlier proceeding. At the core of the inquiry is an examination of the legal and factual issues on foot and the extent to which previous findings may, in the eyes of the fair-minded lay observer, impact on the judge’s ability to decide the matter other than on its merits.
Because the test of apprehended bias involves “a fair-minded lay observer” who is observing a judge, the assumed characteristics of each need to be considered.
A judge is trained and is required “to discard the irrelevant, the immaterial and the prejudicial”: see Vakauta v Kelly (1988) 13 NSWLR 502 at 527 (McHugh JA), adopted in Vakauta v Kelly [1989] HCA 44; (1989) 167 CLR 568 at 584-585 (Toohey J); Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488 at [12] (Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ); and Laurie at [80] (Gummow J); and at [140] (Heydon, Kiefel and Bell JJ).
As to the “reasonable observer”, in Laurie at [145], Heydon, Kiefel and Bell JJ affirmed that a reasonable observer would note the possibility of the evidentiary position changing between the previous proceeding and the subsequent proceeding.
In R v Burrell (2007) 175 A Crim R 21; [2007] NSWCCA 79 at [11], McClellan CJ at CL (with whom the other members of the New South Wales Court of Criminal Appeal agreed) stated that:
“The ordinary fair minded person understands that in the exercise of the judicial function it will be necessary, from time to time, for a judge to reconsider matters which have previously been considered or which may have been pronounced upon by that particular judge.”
In Sengupta v Holmes [2002] TLR 351, at [35]-[37], Laws LJ (Jonathan Parker LJ agreeing) stated that the fair-minded observer would recognise that a professional judge would be capable of departing from an earlier expressed opinion.
However, as I have indicated, applying these principles will be a matter of judgment and evaluation in the circumstances. The application of these principles to particular facts in earlier authorities, concerning as they do, the particular circumstances that may or may not have lead a judge to be disqualified, are not to be elevated to the “principles” to be applied. Nor is the application of the principles in any given case to be used as a gloss upon those principles. As the authorities demonstrate, including Laurie, the principles are relatively well established, but in the application of these principles reasonable minds may differ as to the result.” 16
[23] Essentially, as should be apparent from our discussion of the grounds of appeal earlier, the proposition advanced by the Appellant is that the manner of the Commissioner’s questioning of the Respondent together with the erroneous factual findings might suggest that the Commissioner was seeking to adduce by leading questions, favourable responses from the Respondent which might suggest that the Commissioner is predisposed to the Respondent’s case. In the result a fair-minded lay observer might reasonably apprehend that the Commissioner might not bring an impartial mind to the resolution of the remaining jurisdictional issue.
[24] The Appellant also contends the Commissioner’s dealing with the Appellant’s application for a variation to the order to produce documents further adds to this apprehension. As a result a fair-minded lay observer might reasonably apprehend that the Commissioner might not bring an impartial mind to the resolution of the question whether the Appellant is a small business employer. The logical connection between the matters identified and the feared deviation from the course of deciding the case on its merits, is the perception of a predisposition by the Commissioner towards the Respondent’s case.
[25] The Respondent is an unrepresented litigant unfamiliar with the jurisdiction and the Commission’s processes. It is unsurprising that a Member of the Commission will in the case of unrepresented litigants provide some assistance in the nature of an explanation of the processes and of the matters that such a litigant must establish in relation to an application. It is also not inappropriate for a Member of the Commission in dealing with an application to ask questions of witnesses and of parties appearing before the Member in order to assist the Member in identifying the issues to be decided and the factual findings that must necessarily be made in order to dispose of an application.
[26] The relevant questioning of the Respondent by the Commissioner about which the Appellant complains is to be found at PN 40 to PN 53 of the transcript of the proceedings on 7 September 2018 and is set out below:
“PN40 THE COMMISSIONER: What I need you to do is just tell me how that employment came about, how you think it was regular and systemic and then how it changed into ongoing employment after the end of January 2018.
PN41 MS HANSSON: Okay. So when I applied for the job via Seek, I recall that pretty much the very next day I went in for a trial and received a casual position that night. The reason I believe it was regular and systematic was just due to the fact I was doing more hours sometimes as a casual than I even did as a full timer; up to sometimes 70 hours a week and no less than sort of eight fortnights at 65 hours per fortnight. That is when after about a month I got offered a full time position that ours a didn't take effect until 22 January, so a month after I was already offered the position.
PN42 THE COMMISSIONER: Who came to offer you the full time position?
PN43 MS HANSSON: At the time it was actually the original venue manager, Jarrod, but he was dismissed at the time and then I guess the next senior manager, Hamish Laird, then continued to give me the position.
PN44 THE COMMISSIONER: All right. Does that mean Jarrod said to you, "We want you now to work on a permanent basis?" Was he the first one to say that?
PN45 MS HANSSON: I was basically asked from the moment I set foot in The Harbour Terrace to basically be the reliable one. I would say, yes, from the moment I was there I was asked - it was going to be busy, it was Christmas period, school holidays, and to expect I would have a lot of hours. I think on one, even, fortnight I did something like 80 hours.
PN46 THE COMMISSIONER: All right. Are you saying then that when you started in November, you believed - well, let me turn this around. What did you believe about what would be occurring with your future employment?
PN47 MS HANSSON: Well, I would assume after starting at the beginning of the holiday period that I was going to expect regular work due to the fact that they told me it was their busiest period.
PN48 THE COMMISSIONER: All right. Am I correct in saying that you were told initially it was a trial period of employment?
PN49 MS HANSSON: No, just for the actual two hours I did originally.
PN50 THE COMMISSIONER: I see. That's what you meant. All right.
PN51 MS HANSSON: Yes.
PN52 THE COMMISSIONER: The period as a casual, was it held out to you that if things went well you would be a permanent employee?" 17
[27] There is little doubt that the impugned questions are leading questions but it does not follow that the nature of the questioning has the result that a fair-minded lay observer might reasonably apprehend that the Commissioner might not bring an impartial mind to the resolution of the question he is required to determine. Context is important. The Respondent was not represented and she was attempting to respond to the jurisdictional issues raised by the Appellant. The Commissioner was entitled to ask questions which are aimed at eliciting information relevant to the issues he was required to determine particularly if the Respondent, as appears to be the case, was not on the material before the Commissioner able to articulate a relevant and comprehensive narrative. As the Commissioner noted the material was “somewhat basic”.
[28] A Member of the Commission dealing with an unrepresented litigant has a duty to provide a fair hearing to all parties but the Member should not act in a manner that provides an advantage to the unrepresented litigant. The advice and assistance given to the unrepresented litigant and any questioning of the litigant should be limited to that which is necessary to diminish, so far as this is possible, the disadvantage. The disadvantage that an unrepresented litigant might suffer arises from the unfamiliar and somewhat adversarial procedure associated with many matters that come before the Commission. Redressing this disadvantage may include eliciting relevant facts through questioning in a fair way. Further a Member of the Commission may wish or need to ask questions of a witness in relation to relevant matters, and that fact that the answer may tend to favour one party’s case or that of the other does not speak to unfairness or to apprehended bias.
[29] Although the questions asked were leading, they were directed to relevant matters. The Commissioner could not have known the answer that would be given to the question asked. The answers in this case were not really responsive to the question, they did not advance the Respondent’s case and could just as readily have damaged her case. For example the answer to the question at PN52 could just as readily have been “no”; the Commissioner was not to know the response when he asked the question. When the transcript of the proceedings is reviewed as a whole and taking into account the circumstances of the Respondent, we do not consider the questioning to have been unfair.
[30] A fair-minded lay observer would in our view understand that a professional decision maker faced with an unrepresented litigant would provide fair assistance to the litigant and would ask questions of the litigant designed to elicit information relevant to the decision that will need to be made. A fair-minded lay observer will understand the context we have described above. Against this context and taking into account the questions asked and the manner in which they were asked, we do not consider a fair-minded lay observer might reasonably apprehend that the Commissioner might not bring an impartial mind to the resolution of the question he is required to determine by reason only of the questioning.
[31] As earlier noted the Appellant contends that the questioning combined with the erroneous factual conclusions based on the questioning has the result that a fair-minded lay observer might reasonably apprehend bias. That is that a fair-minded lay observer might reasonably apprehend that the Commissioner is predisposed to the Respondent’s case. Moreover, the Appellant contends that the Commissioner's willingness to make the small business finding in favour of the Respondent without evidence would cause the fair-minded lay observer to apprehend bias.
[32] The erroneous factual findings at found at [8] and [25] of the Jurisdictional Decision and are as follows:
“[8] The Applicant’s statement recorded that during her period of casual employment she had an ongoing roster every week and although there were variations in her hours and the days in which she worked as a casual employee she had a minimum of 30 hours each week. Ms Hansson was not particularly precise about how she came to be employed by Bronze Hospitality, either as a casual employee, or on a full time basis. However, that which she has put forward indicates that she was engaged initially in the pre-Christmas period when the business was very busy, and with the expectation that if things worked out she would be offered ongoing employment at a later time. That offer came about, likely in the last week of December, with it then taking until late January to formally document the ongoing arrangement and convert her employment from casual to full-time.
. . .
[25] The Respondent’s argument that a period of 7 weeks employment is incapable of being regarded as a period of regular and systematic employment is not made out and fails. Further, its contention that the work within that period of 7 weeks was not regular and systematic is also not made out. The evidence of Ms Hansson was that she was engaged to work as a casual with the prospect of being converted to full time employment if the relationship progressed positively. The evidence of the timesheets is that the actual work performed by Ms Hansson in the period in question was part of a continuing relationship between the parties.”
[33] Though somewhat differently expressed both paragraphs contain the same factual conclusion that the Respondent was engaged as a casual with the expectation or prospect that if things worked out she would be offered ongoing employment at a later time. The Full Bench concluded that there was no evidence to support this finding and that the possibility of ongoing permanent employment arose only later, towards the end of December 2017, not at the beginning of the Respondent’s casual employment. 18
[34] The finding that the Appellant was not a small business employer is at [43] of the Jurisdictional Decision but the relevant analysis of the evidence concerning the Four Contested Employees is set out [35]-[42]. The Full Bench concluded that there was an insufficient basis in the evidence to ground a conclusion that the Four Contested Employees were employed on a regular and systematic basis. 19
[35] Each of the impugned findings has been corrected on appeal. The findings at [8] and [25] of the Jurisdictional Decision are not relevant to the issue remitted to the Commissioner for redetermination but plainly the status of the Four Contested Employees is relevant. As to the first category of findings again context is import. The Respondent’s responses were ambivalent and did not directly answer the Commissioner’s questions. The Commissioner does not refer to the transcript of the evidence in support of the conclusions and so it seems evident that he was relying on his memory of the evidence and perhaps any notes that he made. The Commissioner was plainly mistaken as to the evidence but we do not consider that the erroneous factual conclusion in the context of the ambivalent answer given by the Respondent discloses a basis for a fair-minded lay observer to reasonably apprehend bias or that the Commissioner was predisposed to the Respondent’s case. That the erroneous factual finding was connected with the Commissioner’s questioning does not in the context we have described alter that conclusion.
[36] As to the conclusion at [43] of the Jurisdictional Decision and the position of the Four Contested Employees, as already noted the Full Bench concluded that there was an insufficient basis in the evidence to ground the Commissioner’s conclusion that the Four Contested Employees were employed on a regular and systematic basis. The finding of an insufficiency in the evidence is a matter about which the Commissioner must be taken to be acutely aware. Although the fair-minded lay observer might reasonably apprehend that a decision maker who has found a state of affairs to exist may not be inclined to depart from that view in a subsequent case, this will also depend on context. A fair-minded lay observer would note the possibility of the evidentiary position changing between the previous proceeding and the subsequent proceeding. Indeed this is very likely to be the case in the proceedings before the Commissioner as the parties are likely to adduce further material. The material sought by the order for the production of documents is a case in point.
[37] In addition just as the ordinary fair-minded lay observer understands that in the exercise of the judicial function it will be necessary, from time to time, for a judge to reconsider matters which have previously been considered or which may have been pronounced upon by that particular judge, the same understanding is to be garnered in relation to the Commissioner’s arbitral powers in deciding the question remitted to him by the Full Bench. The fair-minded lay observer would recognise that a professional judge or a Member of the Commission would be capable of departing from an earlier expressed opinion or finding, particularly when an appellate body has pointed out that the earlier finding is not supported by the evidence. Reading the Jurisdictional Decision as a whole we do not consider it is accurate to suggest, as the Appellant does, that the Commissioner’s finding shows a willingness to make the small business finding in favour of the Respondent without evidence. There was some evidence, but it was insufficient to ground the finding made. A fair-minded lay observer will also understand that a decision maker will sometimes make a mistake and when that mistake is pointed out by an appellant body, that the decision maker will act diligently in not repeating the mistake.
[38] For these reasons we do not accept that taken together the questioning of the Respondent and the erroneous factual findings provide a basis for concluding that a fair-minded lay observer might reasonably apprehend that the Commissioner might not bring an impartial mind to the resolution of the question he is required to determine.
[39] We turn then to the issue of the order to produce. The Commissioner made an order for the production of documents requiring the Appellant to produce the timesheets for all of the Appellant’s employees. The Appellant applied for the orders to be varied to exclude those employees who it does not dispute should be counted as employees for the purposes of s23 of the Act. The Appellant contends that it is clear that the timesheets of employees not in dispute are documents that are not relevant to any matter in issue, and accordingly, ought not to be required to be produced. It contends that the requirement to produce documents pursuant to the order is a reasonably onerous task for a small business and so documents should not be the subject of an order, unless it is reasonably required for the resolution of the matters in dispute. The Appellant contends that in the circumstances the Commissioner refusal to vary the orders viewed in the context of the other matters raised by it may cause the objective observer to apprehend bias.
[40] The Respondent produced a transcript from the audio recording, which we accept is accurate, of the proceeding before the Commissioner on 6 May 2019 at which the issue of varying the order was agitated, and which we set out below:
“Commissioner: My view on the order is to accede to Ms Hanson’s wishes. I’ve taken the view that the material that is presently before me suffers a little bit from uncertainty as to the precision about who is referred to as a full time employee and who is not. I think the safest approach is for the order to refer to all employees. Accordingly the order will be scheduled that is timesheets for all employees of Bronze Hospitality for a period of no less than 6 months prior to 7th June 2018 and the return date I think will be Tuesday, 14 May 2019 at 4pm Australia Eastern Standard Time. Now, on that basis… Yes Mr Thorpe?
Mr Thorpe: Can you help me to understand why parties who are identified as full timers and therefore are fully included are required to provide timesheets.
Commissioner: Well, you can only produce what you have, now…
Mr Thorpe: Correct, but can you understand why party who is identified as a full-timer... why would their timesheets assist any part of this case?
Commissioner: Well, as I endeavoured to explain before, I have some uncertainty as to who is being identified as a full timer and who is not. I think the application that is made by Ms Hanson has apparent relevance, I have not heard from the Respondent that it amounts to oppression and on that basis I propose to grant the order in the manner that I set out.
Mr Thorpe: Sorry Commissioner, were we to say, they are a casual and fall outside I can understand why an order compelling us to provide timesheets to identify what their status is is relevant. But where we say, they are full-time, the question what hours they work or anything else is irrelevant. They are caught in the count of the number for employees. So their timesheets are completely irrelevant and for me to now have to go and get another 11 sets of timesheets – Ms Connellan has left. She left yesterday and we are sorting out her final departure. But, there is no relevance to the time worked by people who are said to be full-time. Even if there’s uncertainty, the fact that we say they are full time means the hours they work are completely irrelevant. They are captured as employees who get counted. The question is what employees get counted. We say you count those employees. Therefore, their timesheets are irrelevant.
Commissioner: Alright, I take that as a submission, which doesn’t change my order. I will be repeating myself and I say this, which is that the things I took into account were that I was not satisfied on the material, which has been provided so far as to who is within that count of full time and who is not. Now further, I take the view that the timesheets document which was put forward by Ms Connellan referred to a number of people who were then also referred to elsewhere within the Respondent’s material as being full time. Now when I go through that fortnightly timesheet material there are at least two of those people whose hours are somewhat beneath the threshold that one would expect as a full time employee. On that bases (sic) I have made the order that I made Mr Thorpe and documentation in that respect will be issued by my Chambers tomorrow.”
[41] It seems clear to us from the transcribed exchange above that the Commissioner has some concern about the position of some full time employees and whether employees who might be casual employees should properly be regarded as full-time. This may affect the number of employees to be included in the count of employees. To resolve this concern the Commissioner has required the production of the relevant records. Given the Commissioner’s earlier conclusion was set aside on the basis of insufficiency of evidence it is unsurprising the Commissioner is taking a more forensic approach to the evidence he requires.
[42] We do not accept, whether viewed in isolation or in the context of the matters earlier discussed that this matter provides a basis for concluding that a fair-minded lay observer might reasonably apprehend that the Commissioner might not bring an impartial mind to the resolution of the question he is required to determine.
[43] For the reasons stated the Appellant’s recusal application is dismissed.
Orders
[44] We order as follows:
(1) Permission to appeal is granted.
(2) The appeal is upheld.
(3) The Decision in [2019] FWC 2911 is quashed.
(4) The application for the recusal of Commissioner Wilson in matter U2018/6613 is dismissed.
DEPUTY PRESIDENT
Appearances:
G Douglas, lawyer for the Appellant
No appearance for the Respondent
Hearing details:
2019
Melbourne and Perth (video hearing)
17 May
Submissions:
Appellant,13 May 2019
Respondent, no submissions filed
Printed by authority of the Commonwealth Government Printer
<PR708466>
1 [2018] FWC 5665
2 Ibid at [26]
3 Ibid at [43]
4 [2019] FWCFB 1099
5 Ibid at [48]
6 [2019] FWC 2911
7 appeal book at 88
8 appeal book at 88
9 appeal book at 42
10 [2019] FWCFB 1099 at [40]
11 [2019] FWC 2911 at [31]-[36]
12 appeal book at 88
13 [2019] FWC 2911 at [37]
14 [2000] HCA 63, (2000) 205 CLR 337
15 (2011) 202 FCR 439
16 Ibid at 441-443, [8]-[23]
17 Appeal Book at pp 40-42
18 [2019] FWCFB 1099 at [40]
19 Ibid at [17] and [26]
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