Lidong Han v State of Victoria (Department of Education and Training)

[2022] FWC 2948

[2022] FWC 2948

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Lidong Han
v

State of Victoria (Department of Education and Training)

(U2022/8424)

DEPUTY PRESIDENT GOSTENCNIK MELBOURNE, 9 NOVEMBER 2022

Application for an unfair dismissal remedy – recusal application

1. By his application dated 16 August 2022, Lidong Han applies under s 394 of the Fair Work Act 2009 (Act) for an unfair fair dismissal remedy. He alleges, inter alia, that he was dismissed from his teaching position at Araluen Primary School by the State of Victoria. The respondent contends that the applicant was not protected from unfair dismissal within the meaning of ss 382(a) and 383(a) of the Act and that he was not dismissed within the meaning of ss 385(a) and 386 of the Act. Section 396 of the Act requires, inter alia, that the Commission must decide whether a person applying for an unfair dismissal remedy is protected from unfair dismissal before considering the merits of an application.

1. On 21 October 2022, I conducted a case management conference and issued directions to ready the application for hearing to deal with the jurisdictional matters raised by the respondent. The respondent was represented by Elizabeth Guarino and Alexander Cram. Both are lawyers employed in Department of Education and Training and, as employees of the respondent, no question of permission for the respondent to be represented by a lawyer or paid agent arose.

1. By email correspondence to the Commission on 24 October 2022, Mr Han made an application for my recusal on two bases. First, during a period while I held the office of Director of Fair Work Building and Construction, Ms Guarino was a legal intern in the office of the FWBC. Second, while in private practice as a Partner of Corrs Chambers Westgarth I acted for the State of Victoria. I take the application as one of recusal on apprehended bias grounds. Mr Han does not contend actual bias. Mr Han sent further related correspondence to my chambers on 28 October 2022.

1. I listed Mr Han’s recusal application for mention on 31 October 2022 and directed that by 4 November 2022, he file and serve any submissions additional to those contained in his email correspondence of 24 and 28 October 2022 in support of his application that I recuse myself from further hearing his application for an unfair dismissal remedy. No further submissions were filed.

1. The principles stated by High Court in Ebner v Official Trustee in Bankruptcy[1] concerning apprehended bias apply to Mr Han’s recusal application. In short compass, a judge or tribunal member is disqualified if 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 or tribunal member is required to decide. This principle gives effect to the requirement that justice should both be done and be seen to be done, which reflects the fundamental importance of the principle that the tribunal be independent and impartial.[2] The application of the apprehension of bias principle requires two steps. First, the identification of the factor which it is said might lead the judge or tribunal member to decide a case other than on its legal and factual merits. Second, there must be an articulation of the logical connection between the matter and the apprehended deviation from the course of deciding the case on its merits.[3] It remains necessary to determine whether the apprehension is reasonable considered in the totality of relevant circumstances, and this is sometimes described as a third step.[4]

1. There are several, and sometimes overlapping, categories of case involving disqualification by reason of the appearance of bias. These include interest, conduct, association and extraneous information.[5] Mr Han’s application seems to be concerned with association. Mr Han’s contentions in support of his recusal application in substance suggest that because of my prior background including my acting for the State of Victoria, either or both of Ms Guarino and Mr Cram will “influence the fairness of the hearing.” And further that the respondent has chosen these lawyers to act for it in order “to impose psychological stress on [Mr Han] and Deputy President Gostencnik” and “in order to achieve the evil purpose of influencing Deputy President Gostencnik’s fair hearing.”

1. Members of the Commission have a duty to exercise statutory functions and powers under the Act when its jurisdiction is properly invoked. Commission members are allocated cases or matters according to the allocation practice which pertains to the various kinds of matters which may be the subject of application to the Commission under the Act. Commission members do not select the cases or matters that they will hear and determine, and members are not at liberty to decline to deal with a matter without good cause. Just as members do not choose their matters, parties to proceedings before the Commission do not choose the member who will decide any particular application. If a party to a matter before the Commission objects to a particular member presiding, or continuing to preside, the objection should not be sustained unless it is based upon a substantial ground for contending that the member is disqualified from hearing and deciding the matter.

1. Given the qualifications for holding office as a deputy president of the Commission, a reasonable or fair-minded lay observer will note the possibility of some past associate between members of the tribunal and parties who from time to time appear before the Commission. A mere assertion of some past association with a party, in this case the State of Victoria and its representative Ms Guarino, without more will not lead a fair-minded lay observer to reasonably apprehend that the that I might not bring an impartial mind to the resolution of the questions that I am required to decide. Mr Han does not identify how the association identified is or might be connected to the possibility of a departure on my part from impartial decision making.

1. In truth, Mr Han’s application is directed more to the perceived conduct of, and dissatisfaction with, those the respondent has chosen to represent it in the proceeding rather than establishing a proper basis for recusal on apprehended bias grounds. While the association identified, which is tenuous, might be a sufficient factor which, it is said, could lead me to decide a case other than on its legal and factual merits, there is a complete absence of any articulation of the logical connection between the association and the apprehended deviation from the course of deciding the case on its merits.

1. As the essential elements for contending apprehended bias have not been made out, the application for recusal is dismissed.

DEPUTY PRESIDENT

[1] [2000] HCA 63, 205 CLR 337

[2] Ibid at [6] per Gleeson CJ, McHugh, Gummow and Hayne JJ

[3] Ibid at [8] per Gleeson CJ, McHugh, Gummow and Hayne JJ

[4] CNY17 v Minister for Immigration and Border Protection [2019] HCA 50, 94 ALJR 140, 375 ALR 47 at [21] per Kiefel CJ and Gageler J; see also Regional Express Holdings Ltd, Png Yeow Tat, Mark Burgess and Maree Penglis v Hanson[2021] FWCFB 2755 at [57]; United Workers' Union v Hot Wok Food Makers Pty Ltd[2022] FWCFB 158 at [11] and the discussion in Bronze Hospitality Pty Ltd v Hansson[2019] FWCFB 3456 at [22]

[5] Webb v The Queen [1994] HCA 30; (1994) 181 CLR 41 at 74

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