Application for an unfair dismissal remedy – recusal application – apprehended bias – fair-minded lay observer – double might test – prejudgement v predisposition – active case management – ordinary judicial practice – allocation of matters in FWC – application refused.

On 8 May 2023 Mr Daniel Brewer made an application to the Fair Work Commission under s.394 of the Fair Work Act 2009 (Cth) for a remedy, alleging that he had been unfairly dismissed from his employment with Benchmark OT Pty Ltd.

Mr Brewer was employed for approximately 18 months. He resigned his employment but alleges that during his employment he was bullied, and experienced significant discrimination for having a mental health condition and was constructively dismissed. Benchmark OT says that Mr Brewer was not dismissed but “resigned as an employee of the Respondent” and asked to be engaged as an independent contractor.

A Directions Hearing took place on 13 June 2023 by telephone. At the Directions Hearing a tight timetable was set to hear and determine the significant threshold question of whether Mr Brewer was “an employee who was dismissed” for the purposes of s.386 of the Fair Work Act 2009 (Cth) (FW Act).

Mr Brewer’s evidence and submissions on the discrete question of whether he was dismissed were due on 19 June 2023. Mr Brewer did not file any evidence or materials on that day but instead sent an email asking that a different member of the Commission decide his case and raised a complaint about how his case was being handled.

At an interlocutory hearing on 26 June 2023 I heard arguments from Mr Brewer and Benchmark OT and announced to the parties that I would not recuse myself from continuing to deal with Mr Brewer's application. I provided a summary of my reasons for doing so at the hearing and in this decision I provide my reasons in full.

General Principles - Apprehension of Bias

The legal test for apprehended bias is well established: a judge or decision-maker is disqualified if a fair-minded lay observer might reasonably apprehend that the judge or decision maker might not bring an impartial mind to the resolution of the question they are required to decide. In the High Court decision in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337, [2000] HCA 63 at [3]-[8] the majority said:

“[3] Fundamental to the common law system of adversarial trial is that it is conducted by an independent and impartial tribunal…
[4] The principle has been applied not only to the judicial system but also, by extension, to many other kinds of decision making and decision maker. Most often it now finds its reflection and application in the body of learning that has developed about procedural fairness…
[5] … That principle is obviously infringed in a case of actual…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Daniel Brewer v Benchmark OT Pty Ltd

Details

AGLC: Daniel Brewer v Benchmark OT Pty Ltd [2023] FWC 1568
Case: [2023] FWC 1568
Decision Date: 28 JUNE 2023

CaseChat Overview and Summary

Daniel Brewer has applied to the Fair Work Commission for a remedy alleging that he was unfairly dismissed from his employment with Benchmark OT Pty Ltd. The Commission must determine whether Mr Brewer was dismissed within the meaning of the Fair Work Act 2009 (Cth) (FW Act). At an interlocutory hearing on 26 June 2023 Mr Brewer applied for the Deputy President to recuse themselves from continuing to deal with his application. The Deputy President rejected Mr Brewer's application and provided reasons for doing so. The Deputy President considered the grounds relied upon by Mr Brewer and concluded that none of the grounds had the requisite logical connection to the feared deviation from the course of deciding the case on its merits. The Deputy President concluded that no fair-minded lay observer might reasonably apprehend that the Deputy President might not bring an impartial mind to the resolution of the question they are required to decide. The Deputy President rejected Mr Brewer’s application and further directions were made to prepare the matter for hearing.

Orders