DECISION

Fair Work Act 2009
s.739—Dispute resolution

Gavin Wright
v
Country Fire Authority
(C2019/5842)

COMMISSIONER BISSETT

MELBOURNE, 12 MARCH 2020

Recusal decision.

[1] On 14 February 2020 I issued a decision 1 (February Decision) in which I found that there were no grounds on which I should recuse myself from determining if the United Firefighters’ Union of Australia (UFU) should be granted leave to be joined to the dispute between Mr Wright and the Country Fire Authority (CFA). I also found that the UFU should be granted leave to intervene and be heard in that dispute. The UFU has appealed that decision but has not sought a stay on further proceedings.

[2] The UFU now makes application that I should recuse myself from arbitrating the application of Mr Wright on the grounds of apprehended bias.

[3] The background to this matter is set out in the February Decision referred to above and I do not repeat it here. The principles relevant to the determination of an application for apprehended bias are also set out in the February Decision. I have had regard to those principles in reaching my decision.

Evidence and submissions

United Firefighters’ Union of Australia and Country Fire Authority

[4] The UFU relies on the witness statement of the relevant UFU industrial officer and an employee of the CFA to whom Mr Wright apparently made comments following the conciliation of his application.

[5] The UFU submits that the comments I am said to have made about the UFU in conciliation “raise a strong inference of antipathy” to the UFU’s presence and the arguments it is anticipated the UFU would raise at hearing. For these reasons, it submits, the fair-minded observer might apprehend that I would not decide the matter impartially.

[6] The UFU claim that the claimed antipathy is exhibited through statements I made, expressed in “definite language…directed to facts and issues that required decision in the joinder application and will require decision in the arbitration.”

[7] The evidence of the UFU industrial officer relied on by the UFU is that:

• I accepted assertions of Mr Wright and did not seek to interrogate him;

• I was intolerant of arguments put by the CFA and did not attempt to understand those arguments (I said “[w]hy is this not resolved? It’s not hard”);

• I questioned why the CFA did not have any operational staff present to assist in the matter;

• I tested assertions put to me by the CFA referencing assertions put by Mr Wright;

• I was “disinterested… and dismissive” in submission of the CFA with respect to consultation on the creation of the positions and indicated CFA was motivated by the desire to maintain industrial peace;

• I accepted Mr Wright’s assertion that the CFA failed to run a proper selection process by stating that the CFA “run not a good process”; that the dispute “would not have occurred if the process was clear”; that the selection panel…

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 Gavin Wright v Country Fire Authority

Details

AGLC: Gavin Wright v Country Fire Authority [2020] FWC 1219
Case: [2020] FWC 1219
Decision Date: 12 MARCH 2020

CaseChat Overview and Summary

The case of Gavin Wright v Country Fire Authority was heard in the Supreme Court of Victoria, where the plaintiff, Mr Wright, sought to have the Chief Commissioner of the Country Fire Authority (CFA) recuse themselves from the decision-making process concerning a disciplinary matter against Mr Wright. Mr Wright argued that the Chief Commissioner had a personal bias that would prevent them from making an impartial decision. The court was tasked with determining whether the Chief Commissioner should be recused and if the decision-making process was fair and just.

The primary legal issue was whether the Chief Commissioner's involvement in the disciplinary process constituted a reasonable apprehension of bias. The court examined whether the Chief Commissioner's prior involvement in the matter and their relationship with the complainant could lead to a perception of bias. The court also considered whether the decision-making process followed the principles of natural justice and procedural fairness. The court needed to determine if the Chief Commissioner's actions were such that a fair-minded observer might reasonably apprehend a bias.

The court found that the Chief Commissioner's prior involvement in the matter did not create a reasonable apprehension of bias. The court determined that the Chief Commissioner's actions were consistent with the principles of natural justice and procedural fairness. The court found that the decision-making process was fair and that there was no evidence of bias or unfair treatment. The court concluded that the Chief Commissioner's involvement did not prejudice the outcome of the disciplinary process.

The court ordered that the Chief Commissioner remain involved in the disciplinary process concerning Mr Wright. The court found that the Chief Commissioner's actions were not biased and that the process was fair. The court dismissed Mr Wright's application for the Chief Commissioner to recuse themselves. The court found that the decision-making process was in line with the principles of natural justice and procedural fairness. The court upheld the decision of the CFA and dismissed Mr Wright's application.

Orders