George Anthony Lazcano v Metro Trains Melbourne Pty Ltd T/A Metro Trains Melbourne
[2022] FWC 2183
•17 AUGUST 2022
| [2022] FWC 2183 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
George Anthony Lazcano
v
Metro Trains Melbourne Pty Ltd T/A Metro Trains Melbourne
(U2022/1384)
| COMMISSIONER BISSETT | MELBOURNE, 17 AUGUST 2022 |
Application for an unfair dismissal remedy – application for recusal.
Mr George Lazcano has made an application in which he seeks relief from unfair dismissal. The application is due to be heard by me at 10.00am on Thursday 18 August 2022.
On Tuesday 16 August 2022 Mr Lazcano sent an email to my chambers in which he indicated he wished to have a different Member deal with his application “who will likely be unbiased” and asked how he should go about this. In reply my chambers referred Mr Lazcano to the Fair Hearings Practice Note which contains some information on apprehended bias and advised that any application needs to be made in writing prior to the hearing time.
That evening I received a submission from Mr Lazcano in support of his request that his matter be dealt with by a different Member of the Commission. On receipt of these submissions my chambers asked Mr Lazcano if he wished to be heard on his application. He was advised that if he did not wish to be heard I would make a decision on the basis of the submissions filed by him. A hearing was held on 17 August 2022.
Mr Lazcano submits that I should recuse myself because I have recently dealt with Metro Trains matters where I dismissed the applications. It appears that this application is made on the grounds of actual and apprehended bias.
Mr Lazcano’s employment was terminated for reasons related to his failure to be vaccinated. Mr Lazcano’s application is the 15th application seeking relief from unfair dismissal I have dealt with which is vaccine related and where Metro Trains Melbourne Pty Ltd T/A Metro Trains Melbourne (Metro Trains) is the Respondent to the case. The first 14 matters were heard together by agreement of the parties on the grounds that the substantive matters in dispute were the same for each application (the Metro Trains matters). In that matter all Applicants (bar 1) were represented by the same lawyer. I dismissed the applications for the reasons given in that decision.[1] I note that Mr Lazcano was asked if he wished to be heard with the Metro Trains matters and declined, as was his right.
Without limiting Mr Lazcano’s submissions at the hearing of his application it appears that he argues that he was unfairly dismissed on 2 primary grounds – firstly he says he was dismissed for failing to respond to correspondence sent to him while he was on Long Service Leave in circumstances where the correspondence was sent to the incorrect mailing address. That correspondence was in relation to the need to provide evidence of vaccination.
The second reason Mr Lazcano gives for his dismissal being unfair is that he says the vaccine was experimental, he was not offered compensation for any side effects of the vaccine, he was discriminated against as taking the vaccine is contrary to his religion and he was able to work alone.
Mr Lazcano’s application that I recuse myself is because of the decision I issued in the Metro Trains matters and his concern that I might therefore “easily be swayed by the previous hearing and ruling”. In the Metro Trains matters decision I considered the submissions and evidence put to me by the Applicants and Metro Trains but ultimately found that the grounds argued were not made out or were matters more properly dealt with in the Courts. I also considered the individual circumstances of each of the 14 Applicants but did not find they were such to counter the valid reason I found for dismissal. Those matters were decided on the basis of the material put before me.
Consideration
I should observe that it is not unusual for Commission Members to hear multiple applications for unfair dismissal where the same employer is involved. This is even more so with applications related to vaccine matters. Many of these applications have been received at around the same time as employers have implemented policy or government health orders consistently across their workforce.[2]
That a Member may have dealt with unfair dismissal applications from the one employer does not automatically disqualify the Member from hearing other applications where the same employer is involved.
Actual bias is different to an apprehension of bias. “A claim of actual bias requires proof that the decision maker approached the issues with a closed mind or had prejudged the matter and, for reasons of either partiality in favour of a party or some form of prejudice affecting the decision, could not be swayed by the evidence in the case at hand.”[3]
Beyond that I have issued a decision in matters in which Metro Trains was the Respondent, there is no other matter that could go to the question of actual bias. There has been nothing said or done in relation to Mr Lazcano’s application that would suggest I have pre-judged his application.
The test for disqualification from hearing a matter on the grounds of apprehended bias is “whether 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 was required to decide.”[4] As was observed in Marczenko & Others v Jetstar Airways Pty Ltd[5] an “apprehension of bias must be “firmly established” in the case of an application for disqualification for suspected prejudice.”[6]
It is fundamental to the work of the Commission that a decision-maker should not only “be fair and this means that it must be open, impartial and even-handed” but that it should be seen to be fair. For this reason one of the cardinal principles of the law is that the decision-maker must decide the case on the evidence and arguments presented by the parties and by reference to those matters alone.[7] “The basis for disqualification is not merely that the member’s past decisions, on questions of fact or law, might lead to a reasonable expectation that she or he will decide the case adversely to one of the parties. Nor is it that she or he has had previous contact or experience, as a member of the Commission, with the facts involved in the particular matter, with the context in which the particular matter arises, or with one or more of the parties involved in the particular matter.”[8] (underlining added)
The authorities also say that a decision-maker should not recuse themselves lightly. While it is important to avoid apprehended bias:
It is equally important that judicial officers discharge their duty to sit and do not, by acceding too readily to suggestions of appearance of bias, encourage parties to believe that by seeking the disqualification of a judge, they will have their case tried by someone thought to be more likely to decide the case in their favour.[9]
It seems that Mr Lazcano considers that I should recuse myself because I decided the Metro Trains matters and did not find in favour of the Applicants and he has a concern I will determine his application adversely to him. That is, having decided one matter he is concerned it will influence how I decide his application.
I am yet to hear evidence and submissions in Mr Lazcano’s matter. Mr Lazcano has yet to put his case before the Commission (although submissions and witness statements have been filed). I would observe that Mr Lazcano raises circumstances in the material he has filed particular to his case that were not subject to any consideration in the Metro Trains matters. It is incumbent upon me that Mr Lazcano’s case be determined on the basis of the submissions he makes and the evidence he gives and that will occur, just as the Metro Trains matters were decided on the basis of the case put on that occasion. I do not know how I will decide the matter and will not know until after I have heard from the parties and considered the breadth of material they put. As Mr Lazcano’s representative said, there are matters in this case similar to what was heard in the Metro Trains matters and there are circumstances that are different. That is, it is a different case.
Mr Lazcano fails to identify a logical connection between my decision in the Metro Trains matter and what is required to be done in his application.
Mr Lazcano’s request that his application be dealt with by another member does not disclose any basis for actual or an apprehension of bias, rather, it discloses a concern that, having decided in favour of Metro Trains in the early matters which were heard together, I will find in favour of Metro Trains again. This is not sound grounds on which I should disqualify myself.
The application of Mr Lazcano that his file be referred to another member is, for this reason, refused.
COMMISSIONER
Appearances:
L. Brockie for the Applicant.
B. Popple for the Respondent.
Hearing details:
2022.
Melbourne by video using Microsoft Teams:
August 17.
[1] Robinson and Others v Metro Trains Melbourne Pty Ltd T/A Metro Trains Melbourne [2022] FWC 1614
[2] In this respect it is to be observed that most Members have dealt with multiple applications for remedy for unfair dismissal in circumstances where the applicant was dismissed because of vaccination matters. Cases of this type continue to be heard.
[3] Woolston v Uniting Church in Australia Property Trust (Q) T/A Blue Care Bli Aged Care Facility [2015] FWC 5853 at [12] citing Re Medicaments and Related Classes of Goods (No 2) [2000] EWCA Civ 350; [2001] 1 WLR 700 at [37] – [39]
[4] See Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at 350
[5] [2022] FWC 743
[6] Ibid at paragraph [12]
[7] Re JRL; Ex parte C.J.L. (1986) 161 CLR 342 at 350
[8] Re Finance Sector Union of Australia; Ex parte Illaton Pty. Limited (1992) 107 ALR 581 at 583
[9] Re JRL; Ex parte C.J.L. (1986) 161 CLR 342 at 352
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