Henry Bartosiewicz v Monash University
[2014] FWCFB 2745
•12 MAY 2014
[2014] FWCFB 2745
The attached document replaces the document previously issued with the above code on 12 May 2014.
The correct Print Number has been inserted in the decision’s footer.
Nikkita Venville
Associate to Senior Deputy President Acton
Dated 12 May 2014.
[2014] FWCFB 2745 |
FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604—Appeal of decision
v
Monash University
(C2014/3421)
SENIOR DEPUTY PRESIDENT ACTON |
|
Appeal against Certificate of Deputy President Smith at Melbourne on 20 February 2014 in matter number C2013/7106.
Introduction
[1] Mr Henry Bartosiewicz made an application to the Fair Work Commission (FWC) on 30 December 2013 under s.365 of the Fair Work Act 2009 (Cth) (FW Act) alleging he had been dismissed by Monash University in contravention of the general protections provisions in Part 3-1 of the FW Act.
[2] Deputy President Smith conducted a conference between Mr Bartosiewicz and Monash University on 17 February 2014 to deal with the dispute in the s.365 application. Following that conference the Deputy President issued a certificate referring to Mr Bartosiewicz’s s.365 application and the conference, and certifying that the FWC was satisfied that all reasonable attempts to resolve the dispute have been, or are likely to be, unsuccessful.
[3] Mr Bartosiewicz has appealed the Deputy President’s decision to issue the certificate. This decision deals with that appeal.
Permission to be represented
[4] At the commencement of the proceedings in respect of the appeal, permission was granted to Monash University to be represented by a lawyer having regard to the provisions of s.596(2)(a) of the FW Act. We considered such representation would enable the matter to be dealt with more efficiently taking into account the complexity of the matter. Such complexity being associated with the conflict of interest and apprehended bias issues, and the challenge to existing case law on the FWC’s functions in respect of s.365 applications, which were raised in the appeal. Having so concluded we also considered we should exercise our discretion to grant Monash University permission to be so represented, notwithstanding Mr Bartosiewicz’s submissions that we should not do so and Mr Bartosiewicz not having representation.
Grounds of appeal
[5] Mr Bartosiewicz’s appeal essentially derives from his dissatisfaction with the manner in which the conference on his s.365 application was conducted by the Deputy President. His grounds of appeal revolve around the Deputy President:
- not conducting a hearing on Mr Bartosiewicz’s s.365 application and/or not allowing Mr Bartosiewicz to present evidence going to the merits of his s.365 application;
- failing to make recommendations to resolve the dispute, or express an opinion or suggest other means of dealing with the dispute, other than court proceedings;
- failing to make private arbitration of the dispute available;
- being conflicted or biased in respect of Mr Bartosiewicz’s s.365 application as the Deputy President is or has been a Fellow of the Faculty of Business and Economics at Monash University and was previously Chair of the External Advisory Board in the Department of Business Law and Taxation at Monash University; and
- being conflicted or biased in referring to a court decision involving an associate of Mr Bartosiewicz during the conference.
[6] The appeal is opposed by Monash University.
Consideration of the appeal
[7] The FW Act provides that if a person has been dismissed and they allege they were dismissed in contravention of the general protections provisions in Part 3-1 of the FW Act, they may apply to the FWC to deal with the dispute. 1
[8] If a s.365 application is made, the FWC must conduct a conference to deal with the dispute. 2
[9] At a conference, the FWC may, amongst other things, mediate or conciliate or make a recommendation or express an opinion. 3 However, the FWC may deal with a dispute by arbitration only if the FWC is expressly authorised to do so under or in accordance with another provision of the FW Act.4
[10] If the FWC is satisfied that all reasonable attempts to resolve the dispute have been, or are likely to be, unsuccessful, the FWC must issue a certificate to that effect. 5
[11] If the FWC considers, taking into account all the materials before it, that a general protections court application in relation to the dispute would not have a reasonable prospect of success, it must advise the parties accordingly. 6
[12] The FWC’s powers in respect of a s.365 application were considered by a Full Bench of the FWC in Hewitt v Topero Nominees Pty Ltd T/A Michaels Camera Video Digital (Hewitt). 7 Hewitt was decided prior to the 1 January 2014 amendments to the FW Act which provide for consent arbitration by the FWC of s.365 applications. Monash University has not consented, and does not consent, to the arbitration of Mr Bartosiewicz’s s.365 application.
[13] Relevantly, the Full Bench in Hewitt stated:
- “[19] The Explanatory Memorandum suggests that to give the Commission jurisdiction to conduct a conference it is sufficient that an applicant alleges that they have been dismissed in contravention of Part 3-1…
[23] The content and structure of the Subdivision tells against the proposition that s.365 is to be read as imposing jurisdictional pre-conditions beyond the mere filing of an application alleging dismissal in contravention of Part 3-1. The Subdivision does not contemplate that the Commission would engage in any sort of determinative process in dealing with a s.365 application. Three points may be made in this regard…
[33] Second, s.370(1) requires that the Commission ‘advise the parties’ if it considers that taking into account all of the materials before it, a general protections court application in relation to the dispute would not have a reasonable prospect of success. Such advice is, in essence, the expression of an opinion, something the Commission is authorised to do in dealing with a dispute by s.595(2). The advisory role contemplated by s.370(1) is entirely consistent with the conference function in s.368 and, in particular, the legislative note to that section which envisages the Commission dealing with a s.365 dispute by ‘mediation or conciliation, or by making a recommendation or expressing an opinion’…
[35] A third contextual consideration is also relevant. Except in relation to an extension of time application, there is nothing in the Subdivision which contemplates the receipt of evidence by the Commission or the making of a determination requiring findings of fact. The decision of the Full Bench in Hetherington-Gregory v Harrington Village Motel (Hetherington-Gregory), is relevant in this regard. In that matter the Commission considered whether an order for the production of documents in connection with a conference under s.776 of the Act should be made. Section 776 is part of the legislative scheme concerning unlawful termination of employment, in Part 6-4 Division 2 of the Act. That scheme, in ss.773-778, contains a procedure for the Commission to conduct a dispute resolution process in respect of any alleged unlawful termination of employment which is in all relevant respects identical to that for general protections matters in ss.365-370. In refusing to make an order for the production of documents the Full Bench said:
‘[8] The function of a Member of Fair Work Australia in conducting a s.776 conference is to facilitate a resolution of the claim reflected in the application through an agreement of the parties. A Fair Work Australia Member, in conducting a s.776 conference, is not empowered to determine the application or otherwise impose an outcome on the parties.
[9] The statutory requirements upon a Member in relation to a s.776 conference are:
● If satisfied that all reasonable attempts to resolve the dispute have been, or are likely to be, unsuccessful, the Fair Work Australia Member must issue a certificate to that effect (s.777); and
● If the Member considers, taking into account all the materials before it, that an unlawful termination court application in relation to the dispute would not have a reasonable prospect of success, it must advise the parties accordingly (s.778).
[10] A s.776 conference does not involve the hearing of evidence or the undertaking of a hearing involving an assessment of the full evidentiary case which would arise in a hearing in the Federal Magistrates Court or the Federal Court of Australia. It is a conciliation process based on the (often limited) factual material raised by the parties.’...
[40] For the reasons given, the content and structure of Subdivision A of Division 8 of Part 3-1 of the Act support the proposition that it is sufficient to give the Commission jurisdiction to conduct a conference under s.368 that a s.365 application to state on its face that the applicant has been dismissed and it is alleged that the dismissal was in contravention of Part 3-1. We now turn to consider the broader statutory context. In doing so it is important to bear in mind that the purpose or policy of the Act is to gleaned from a consideration of all of the relevant provisions of the Act…
[50] For the reasons given we do not accept that the Commission needs to be satisfied that the applicant has been ‘dismissed’ from their employment before holding a s.368 conference. It is sufficient that the Commission has before it an application that on its face alleges a dismissal in contravention of Part 3-1.” [Endnote deleted]
[14] In light of the provisions of the FW Act, the authority in Hewitt and the position of Monash University opposing consent arbitration, there was no error in the Deputy President not conducting a hearing, not allowing the presentation of evidence, not making private arbitration available and/or not otherwise dealing with Mr Bartosiewicz’s s.365 application, in the manner sought by Mr Bartosiewicz.
[15] We turn then to deal with the remaining conflict or bias grounds of appeal.
[16] Mr Bartosiewicz provided the Full Bench with a document from a website at Monash University. The document had a web address with the date of 2008 in it. The document referred to Commissioner Smith, as he then was, as the recent Chair of the External Advisory Board in the Department of Business Law and Taxation. 8 Mr Bartosiewicz also provided the Full Bench with another a document which he said was from the FWC website. That other document stated that Deputy President Smith was a Fellow of the Faculty of Business and Economics at Monash University.9
[17] Mr Mitchell Brown, the Manager, Workplace Relations (Coordination and Consultancy) for Monash University, gave sworn evidence to the Full Bench. His evidence was that following the receipt of Mr Bartosiewicz’s notice of appeal, he was advised by Ms Margaret Murphy, Faculty Manager in the Faculty of Business and Economics at Monash University, of the nature and extent of the Deputy President’s involvement with Monash University. She had advised him that Deputy President Smith was the honorary, inaugural Chair of an external advisory committee for the Department of Business Law and Taxation within the Faculty of Business and Economics at Monash University during part of 2006 and 2007; had an honorary, unpaid adjunct position with the Faculty of Business and Economics at Monash University during 2009 to 2011; provided a guest lecture for a subject in the Bachelor of Commerce (Human Resources Management) at Monash University in 2012; and since that time had had no association with Monash University. Mr Brown gave further sworn evidence to the Full Bench that he was also informed by Ms Murphy that Deputy President Smith was not involved in any decisions concerning employment matters made by Monash University, and had no involvement or dealings or access to information concerning matters in relation to the Faculty of Engineering or the Faculty of Engineering and Information Technology within which Mr Bartosiewicz was employed at Monash University. 10
[18] We prefer the sworn evidence of Mr Brown over the documents provided by Mr Bartosiewicz in respect of Deputy President Smith’s involvement with Monash University.
[19] From the sworn evidence it is apparent that at the time Deputy President Smith dealt with Mr Bartosiewicz’s s.365 application, he had no involvement with Monash University. With respect to the Deputy President’s previous involvement with Monash University, Mr Bartosiewicz’s submissions did not extend much beyond asserting that his previous involvement was an interest, pecuniary or otherwise, that conflicted or could conflict with the proper performance of the Deputy President’s functions in relation to Mr Bartosiewicz’s s.365 application. Similarly, Mr Bartosiewicz’s submissions that the Deputy President’s previous involvement with Monash University caused him to be actually biased or led to a reasonable apprehension that he was biased in respect of Mr Bartosiewicz’s s.365 application were largely confined to suggesting as much.
[20] With respect to an interest that “could conflict”, in Phipps v Boardman 11 Lord Upjohn considered the phrase “possibly may conflict” stating:
“In my view it means that the reasonable man looking at the relevant facts and circumstances of the particular case would think that there was a real sensible possibility of conflict; not that you could imagine some situation arising which might, in some conceivable possibility in events not contemplated as real sensible possibilities by any reasonable person, result in a conflict.” 12
[21] Authority indicates that subject to qualifications relating to waiver or necessity, the Deputy President would have been disqualified by reason of the appearance of bias if a fair-minded lay observer might reasonably apprehend he might not bring an impartial and unprejudiced mind to the resolution of the question he was required to decide. 13 With the issue of apprehended bias to be considered in relation to the issues, or likely issues, in the proceeding before the Deputy President.14
[22] In Ebner v Official Trustee in Bankruptcy, 15 the majority held that the application of the apprehension of bias principle requires two steps:
“First, it requires the identification of what it is said might lead a judge (or juror) to decide a case other than on its legal and factual merits. The second step is no less important. There must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits. The bare assertion that a judge (or juror) has an “interest” in litigation, or an interest in a party to it, will be of no assistance until the nature of the interest, and the asserted connection with the possibility of departure from impartial decision making, is articulated. Only then can the reasonableness of the asserted apprehension of biased be assessed.” 16
[23] Mr Bartosiewicz has failed to establish why or how, and we are not persuaded that, the Deputy President’s previous involvement with Monash University constitutes an interest that conflicted or could conflict with the proper performance of the Deputy President’s functions in respect of Mr Bartosiewicz’s s.365 application. Nor did Mr Bartosiewicz establish, and we are not persuaded, that the Deputy President’s previous involvement caused him to be actually biased in respect of Mr Bartosiewicz’s s.365 application. Mr Bartosiewicz also failed to articulate the “logical connection” referred to in Ebner. Further, given the nature of the Deputy President’s previous involvement with Monash University and the nature of the issues the Deputy President was required to determine in and from the conference on Mr Bartosiewicz’s s.365 application, we are not persuaded a fair-minded lay observer might reasonably apprehend the Deputy President might not have brought an impartial and unprejudiced mind to the resolution of the issues or likely issues in the proceeding before him.
[24] Mr Bartosiewicz’s concern about the Deputy President referring to a court decision involving an associate of Mr Bartosiewicz during the conference was about the way in which the case arose in the conference before the Deputy President, the allegedly aggressive manner in which the Deputy President referred to the case, Mr Bartosiewicz’s perception that the case was irrelevant to his s.365 application and the effect he believes it had in derailing and curtailing the conference before the Deputy President. Mr Bartosiewicz suggested these demonstrated or were manifestations of the Deputy President’s conflict or bias.
[25] Mr Bartosiewicz’s submissions in respect of the court decision involving his associate represent the perceptions of Mr Bartosiewicz and his associate. They are insufficient to persuade us that the Deputy President had an interest that conflicted or could conflict with the proper performance of his functions in respect of Mr Bartosiewicz’s s.365 application, was actually biased in respect of Mr Bartosiewicz’s application or that a fair-minded lay observer might reasonably apprehend the Deputy President might not have brought an impartial and unprejudiced mind to the resolution of the issues or likely issues in the proceeding before him.
Conclusion
[26] For the foregoing reasons, we are not satisfied Mr Bartosiewicz has established any error by the Deputy President in respect of Mr Bartosiewicz’s s.365 application that would warrant us granting permission to appeal.
[27] Mr Bartosiewicz submitted we should grant permission to appeal in the public interest given the prevalence of unfair fixed term contracts of employment like his in tertiary institutions, Monash University’s reclassification of many of its staff to deprive them of termination rights, the Deputy President’s potential, actual and/or perceived conflict of interest, and the Deputy President’s inappropriate approach in and to the conference on Mr Bartosiewicz’s s.365 application. Some of these public interest grounds raise matters we have already dealt with and in respect of which we have not been satisfied the Deputy President erred. In this matter, they do not attract the public interest. The remaining public interest grounds raised by Mr Bartosiewicz are mere assertions by Mr Bartosiewicz. As such they also do not attract the public interest.
[28] We are, therefore, not satisfied it is in the public interest or otherwise for us to grant permission to appeal in this matter. We refuse permission to appeal. To the extent necessary, we also dismiss Mr Bartosiewicz’s appeal. An order 17 to that effect is being issued at the same time as this decision.
SENIOR DEPUTY PRESIDENT
Appearances:
H. Bartosiewicz appeared on his own behalf.
C. O’Grady, of counsel, for Monash University.
Hearing details:
2014.
Melbourne:
April 16.
1 Fair Work Act 2009 (Cth), s.365.
2 Fair Work Act 2009 (Cth), s.368.
3 Fair Work Act 2009 (Cth), ss.592(4) and (5) and 595(2).
4 Fair Work Act 2009 (Cth), s.595(3).
5 Fair Work Act 2009 (Cth), s.369 prior to 1 January 2014 and s.368 from 1 January 2014.
6 Fair Work Act 2009 (Cth), s.370 prior to 1 January 2014 and s.368 from 1 January 2014.
7 [2013] FWCFB 6321.
8 Appeal exhibit A1.
9 Appeal exhibit A2.
10 Appeal exhibit R1.
11 [1967] 2 AC 46.
12 Ibid at 124.
13 Johnson v Johnson, (2000) 201 CLR 488 at 492 and Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at 344 and 350.
14 The AWU-FIME Amalgamated Union v Acton and Others, (1994) 57 IR 271 at 280.
15 ( 2000) 205 CLR 337.
16 Ibid at 345.
17 Bartosiewicz v Monash University, PR550412.
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