Catherine Lee v Estia Investments Pty Ltd

[2021] FWC 6209

[2021] FWC 6209

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Catherine Lee
v
Estia Investments Pty Ltd
(U2021/8452)

VICE PRESIDENT HATCHER SYDNEY, 26 OCTOBER 2021

Application to stay proceedings in matter U2021/8452 – application for recusal.

[1] This decision reproduces in edited form the decision and reasons which were stated on transcript at the conclusion of the directions hearing conducted in relation to this matter on 25 October 2021.

[2] I have before me today an application by Ms Catherine Lee for an unfair dismissal remedy against her former employer, Estia Investments Pty Ltd (Estia).  Estia, for relevant purposes, operates aged care facilities at which Ms Lee was formerly employed as a lifestyle support officer. Estia is subject in New South Wales to a public health order that requires, for relevant purposes, employees if they need to be on the premises of an aged care facility to have received at least one dose of an approved COVID-19 vaccine by 17 September 2021, or alternatively, have provided evidence of a valid medical contraindication from a registered medical practitioner.

[3] In this case, Ms Lee had neither of those things by the prescribed date, and broadly speaking, as a consequence of this Estia dismissed Ms Lee from her employment.  Ms Lee's unfair dismissal application says the dismissal on that basis was unfair for three reasons:

“1. Estia refused to respond to queries regarding vaccination to allow me to make an informed decision;

2. Estia denied my application for sick leave, doctor’s certificate submitted 16 September 2021; and

3. Estia did not give me appropriate notice for dismissal.”

[4] No doubt these grounds will be elaborated upon in due course.  But at this point in time, I note that there is no specific contention that Estia did not have a valid reason to dismiss Ms Lee.

[5] Mr Buckley, who, with permission, has appeared for Ms Lee at this morning's directions hearing, has firstly applied for the hearing of Ms Lee's application to be stayed pending the determination of proceedings before the Federal Court of Australia in a judicial review application matter which appears to have been filed very recently, perhaps today. 1  That application relates, it appears, to a decision of a Full Bench, in which I formed part of the majority,2 to refuse permission to appeal to a Ms Kimber, who had been dismissed by a different aged care facility.

[6] In that case, the facility had been last year subject to a public health order relating to the influenza vaccination and the key issue was that Ms Kimber claimed that she had a medical contraindicator that exempted her from the application of the public health order, a proposition which the employer resisted. At first instance in that matter, a member of the Commission found as to the unfair dismissal application made by Ms Kimber that her dismissal was not unfair and dismissed the application.  Permission to appeal, as earlier stated, was refused on various grounds by majority. 

[7] The Federal Court application seeks judicial review on a number of grounds. The statement of contentions filed with the application contends that the decision of the Full Bench involved jurisdictional error on the basis that the decision was unreasonable in a number of regards, that the discretion in refusing to grant permission to appeal miscarried, and that the Full Bench acted upon a wrong principle, allowed extraneous, irrelevant matters to guide it and failed to take into account the material considerations.

[8] I am not satisfied that the application for judicial review, even if ultimately upheld by the Federal Court, would be determinative of any matter that is currently before me in Ms Lee's application against Estia.  In particular, it involves a different public health order and involves a different form of vaccination.  And, in this case, the applicant does not contend, at least at this stage, that there was no valid reason for her dismissal, and has not claimed that she has a valid medical contraindication to the taking of the vaccine.

[9] In those circumstances, it does not seem to me to serve any purpose in either party's interests to await the decision of the Federal Court, because that decision, on the material currently available, would not assist in the determination of Ms Lee's application for an unfair dismissal remedy.  I accordingly refuse the application for a stay.

[10] Mr Buckley has also, albeit on the run, made an application that I should recuse myself from the hearing of Ms Lee's application on the basis of what he has described as a “conflict of interest”.  What the “interest” is was not properly articulated by Mr Buckley in accordance with established principle.  It appears to rise no higher than the fact that I formed part of the majority in the Kimber case, and that there was a statement in the Kimber case to the effect that the appellant held a general anti-vaccination position which indicated some view that might be applied to Ms Lee's case.

[11] That proposition, at its highest, does not apply to Ms Lee's case nor does it identify any conflict of interest. It sounds more like an apprehended bias application. But even if the application was brought on that basis, it would not satisfy the grounds for recusal for apprehended bias. The test for apprehended bias is that a reasonable person might apprehend that I might not bring an impartial mind to the determination of the proceedings. None of the matters raised by Mr Buckley goes anywhere near satisfying that test. Accordingly, I decline to recuse myself.

VICE PRESIDENT

Appearances:

N Buckley for the applicant.
T Molan for the respondent.

Hearing details:

2021.

Sydney (via telephone):
25 October.

Printed by authority of the Commonwealth Government Printer

<PR735257>

 1   It was actually filed on Friday 22 October 2021.

 2   [2021] FWCFB 6015