Luke Alexander Oakes v Fernance Enterprises Pty Ltd T/A Autobarn Lismore
[2023] FWC 1610
•3 JULY 2023
| [2023] FWC 1610 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Luke Alexander Oakes
v
Fernance Enterprises Pty Ltd T/A Autobarn Lismore
(U2022/8453)
| COMMISSIONER P RYAN | SYDNEY, 3 JULY 2023 |
Application for an unfair dismissal remedy – application for recusal – apprehended bias – fair-minded lay observer – application refused.
Introduction and Background
The decision concerns an application by Mr Luke Oakes (Oakes/Applicant) that I recuse myself from further dealing with an application for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (FW Act) (Recusal Application).
Mr Oakes filed an application for an unfair dismissal remedy on 17 August 2022 (Unfair Dismissal Application).
In the Unfair Dismissal Application, the Applicant states that his employment with Fernance Enterprises Pty Ltd (Respondent) was terminated with effect from 1 August 2022.
In its Form F3 response, the Respondent objected to the Unfair Dismissal Application on the basis that the Applicant resigned from his employment on 25 July 2022. In addition to its jurisdictional objection that there was no termination at the initiative of the employer, the Respondent contended that the Unfair Dismissal Application was not made within the 21 day time limit.
After attempts to resolve the matter by conciliation were unsuccessful, the matter was allocated to my Chambers to determine whether an extension of time was required, and if so, whether an extension should be granted under s.394(3).
On 25 November 2022, I issued a decision[1] in which I determined that the date of dismissal relevant to the Unfair Dismissal Application was 25 July 2022 and therefore, the Unfair Dismissal Application was filed 23 days after the date the alleged dismissal took effect.[2]
As a consequence of my conclusion that the Unfair Dismissal Application was not made within 21 days of the date of dismissal, I turned to consider the matters required by s.394(3) of the FW Act.
In relation to the reason for the delay,[3] I found as follows:
[46] The Applicant submitted that he had lodged an application on 9 August 2022 which was within the 21 day time limit, but was not in the correct format.
[47] The Applicant submitted that following receipt of the correspondence from the Commission on 9 August 2022, he was moving house and did not have access to the internet and did not know how to change the format of the file.
[48] In relation to the Applicant’s submission that he lodged an application on 9 August 2022, the Applicant did not seek to tender into evidence the email correspondence or the attached file.
[49] In relation to the Applicant’s submission that he moved house and did not have access to the internet, I do not accept this is an acceptable explanation for the delay for two reasons. First, where a party is aware of internet connectivity or access issues, I agree with the observation of Bissett C, that steps should have been taken to plan for that eventuality. Second, during the proceedings the Applicant explained that when completing the ‘first application’ he accessed the internet on his laptop by ‘hot spotting’ his mobile telephone. There was no explanation by the Applicant as to why this method could not be utilised during the period following 9 August 2022.
[50] In relation to the Applicant’s explanation that he did not know how to change the file format, I do not accept this is an acceptable explanation for the delay. To the extent that the Applicant needed assistance, the correspondence from the Commission invited the Applicant to contact the Commission for help. The Applicant did not take up that invitation for assistance, nor did the Applicant pursue an alternative method of filing the Application such as by telephone.
[51] Furthermore, during the proceedings the Applicant stated that in the period of 9 August 2022 to 17 August 2022, he was ‘busy’ working towards the acquisition of a friend’s business. It is clear to me that the Applicant prioritised this over the filing of the Application.
Conclusion – Reason for delay
[52] I do not consider these matters, individually or together, to be an acceptable or reasonable explanation for the delay. The absence of an acceptable explanation weighs against a conclusion that there are exceptional circumstances.[4]
[footnotes omitted]
After taking into account the matters under s.394(3) and all of the matters raised by the Applicant, I was not satisfied that there were exceptional circumstances and dismissed the Unfair Dismissal Application and issued an Order to that effect.[5]
The Applicant subsequently made an application pursuant to s.604 of the FW Act for permission to appeal, and if granted, to appeal the Extension of Time Decision.
On 3 April 2023, the Full Bench of the Commission published its decision in the appeal.[6]
In the Appeal Decision, the Full Bench referred to the decision in Matthew Duncan Hatch v Woodside Energy Ltd[7] and Rule 14 of the Fair Work Commission Rules before stating:
[39] Noting it is not contended otherwise, we are satisfied that the document that Mr Oakes sent to the Commission on 9 August 2022 was the same as the PDF document filed with the Commission on 17 August 2022, being the application for an unfair dismissal remedy dated 8 August 2022. Mr Oakes’ unchallenged evidence was that he downloaded what he understood to be a Word version of the Form F2 application from the Commission’s website and lodged the completed application in that format on 9 August 2022. As observed by the Respondent and identified in the Commission’s 9 August 2022 correspondence to Mr Oakes, Word is one of the Commission’s recommended file formats. However, noting that the Commission’s 9 August 2022 correspondence to Mr Oakes does not, with specificity, identify the particular format of Mr Oakes’ application, in the event that the application was lodged on 9 August 2022 in a format other than that required by rule 14 of the Rules, we exercise our discretion to waive compliance with the Rules and accept the application lodged by Mr Oakes on 9 August 2022.
[40] In these circumstances, the fact that the file sent on 9 August 2022 by Mr Oakes could not be opened by the Commission’s registry at that time does not result in a conclusion that the application had not been “made” for the purposes of s 394(2) of the Act on 9 August 2022.
Having concluded that the Unfair Dismissal Application was made within the statutory timeframe of 21 days when it was filed on 9 August 2022, the Full Bench granted permission to appeal, upheld the appeal, quashed the Extension of Time Decision and Order and remitted the matter to me for determination.[8]
Upon remittal of the matter, I listed the matter for a case management and directions hearing on 19 April 2023.
On the morning of 19 April 2023, the Applicant sent correspondence to my Chambers advising that he was not available to attend the case management and directions hearing listed for later that day due to his current employment arrangements. The Applicant’s email also included the following:
I would also like to raise an objection to having my case heard by the same officer as my last hearing as his ruling was dismissed as unfair and incorrect.
In the interest of a fair case free from prejudice and a fair trial I would like to request a different officer.
In response to that correspondence, the case management and directions hearing was vacated. The Applicant was directed to file a Form F1 application setting out the grounds for the recusal. The Applicant was directed to file the Form F1 by 4:00pm on Monday 24 April 2023.
The matter was listed for a case management and directions hearing on 26 April 2023.
Following the case management and directions hearing, the Recusal Application was listed for hearing on 2 May 2023. The Respondent was directed to file any submissions in response to the Recusal Application by 28 May 2023.
The Recusal Application
The basis for the Recusal Application is as follows:[9]
Recusal application in regard to case number: U2022/8453, this matter has previously gone before commissioner P Ryan.
Commissioner P Ryan handed down his decision regarding extensions of time on 25/11/2022
I appealed this decision due to a considerable error made in the decision and the appeal was granted by
: Vice President Catanzariti
: Deputy President Clancy
: Deputy President Millhouse
They found the commissioners decision was erroneous and the decision was quashed.
(03/04/2023)
As stated by: impartiality/spotlighton/ cognitive-biases/
“We now know that the brain will often take shortcuts when making decisions — and while these shortcuts are generally useful and allow us to function — they bias decision making and can lead to error. These shortcuts often operate at the subconscious level, so we don’t even know it is happening.”
I reserve my right to a free and fair trial and I wish to request an alternative Commissioner handle my case to ensure there can be no prejudice from previous involvement or handling of my application.
Relevant Legal Principles
In Construction, Forestry, Maritime, Mining and Energy Union v Watpac Construction Pty Ltd T/A Watpac Construction[10] (Watpac), the Full Bench of the Commission set out the principles relating to disqualification on the ground of apprehended bias as follows:[11]
[29] The principles relating to disqualification on the ground of apprehended bias are not seriously in contest. These principles are found in Ebner v Official Trustee in Bankruptcy and were usefully summarised by Middleton J in Kirby v Centro Properties Limited (No 2) as follows:
‘The principles respecting disqualification for apprehended bias represent a balance between two competing policy considerations, namely the maintenance of public confidence in the judicial system, by ensuring that the public perceive that cases are decided only by reference to the evidence before the court, and the need for judges to discharge their duties unless good reason is shown.
The apprehension of bias principle is stated in Ebner v The Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 at [6] where Gleeson CJ, McHugh, Gummow and Hayne JJ said (subject to qualifications relating to waiver and necessity):
“... a judge 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 is required to decide.”
The question is one of possibility (real and not remote), not probability. If there is an appropriate apprehension of bias, then the judge must disqualify himself or herself, no matter what case management considerations arise in the efficient and effective determination of a proceeding.
In Ebner, the majority in the High Court affirmed that the application of this test involves two steps. First, there must be identification of what it is that might lead a judge to decide the particular questions before him or her other than on the merits. Second, having identified the factors or circumstances that might influence a departure from meritorious decision-making, it is “no less important” to articulate the “logical connection” between those factors and the fear that the judge might not apply proper judicial method (that is, merits based decision-making) in resolving the controversy on the facts and the law (at [8]).
The mere fact that a judge has made a particular finding on a previous occasion does not necessarily give rise to an apprehension of bias. Nevertheless, in some situations previous findings may lead to disqualification and “what kind of findings will lead to relevant apprehension of bias must depend upon their significance and nature”: Gascor v Ellicott [1997] 1 VR 332 at 348 (Ormiston JA); see also at 342 (Tadgell JA with whom Brooking JA agreed); and see Cabcharge 5 at [34].
However, as the majority observed in British American Tobacco Australia Services Ltd v Laurie [2011] HCA 2; (2011) 242 CLR 283, the lay observer is the “yardstick”, and in this regard:
“... the lay observer might reasonably apprehend that a judge who has found a state of affairs to exist, or who has come to a clear view about the credit of a witness, may not be inclined to depart from that view in a subsequent case. It is a recognition of human nature” (at [139]). (Emphasis in original.)
The application of these principles does not change merely because a judge expressly acknowledges at the hearing of the first proceeding that different evidence may be led in the later proceeding, casting new light on the facts he or her had found in the previous proceeding. This is assumed to occur in any event. Such an acknowledgment does not necessarily remove the impression created by reading the earlier judgment that the views there stated might influence the determination of the same issue in a later judgment: see Laurie at [145] per Heydon, Kiefel and Bell JJ. [Emphasis in reported judgement]
These principles must be carefully applied. It has been said that: “... disqualification flows from a reasonable apprehension that the judge might not decide the case impartially, rather than that he will decide the case adversely to a party”: Cabcharge at [32]; Re JRL; Ex parte CJL [1986] HCA 39; (1986) 161 CLR 342 at 352 (Mason J).
Needless to say, disqualification of a judge by reason of prejudgment must be “firmly established”: Cabcharge at [25]; Re JRL at 352. Judges should not accede too readily to recusal by reason of apprehended bias.
To apply these principles in any given case is a matter of judgment and evaluation depending on the exact circumstances. Undoubtedly, the question of an apprehension of bias requires one to focus on the issues that the judge is called upon to decide - see eg British American Tobacco Australia Ltd v Gordon (2007) NSWSC 109 at [97] per Brereton J. No strict approach should be taken in identifying the legal and factual issues. The issues before a judge sought to be disqualified may well be different in some respects to those issues determined in the earlier proceeding. At the core of the inquiry is an examination of the legal and factual issues on foot and the extent to which previous findings may, in the eyes of the fair-minded lay observer, impact on the judge’s ability to decide the matter other than on its merits.
Because the test of apprehended bias involves “a fair-minded lay observer” who is observing a judge, the assumed characteristics of each need to be considered.
A judge is trained and is required “to discard the irrelevant, the immaterial and the prejudicial”: see Vakauta v Kelly (1988) 13 NSWLR 502 at 527 (McHugh JA), adopted in Vakauta v Kelly [1989] HCA 44; (1989) 167 CLR 568 at 584-585 (Toohey J); Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488 at [12] (Gleeson CJ,Gaudron, McHugh, Gummow and Hayne JJ); and Laurie at [80] (Gummow J); and at [140] (Heydon, Kiefel and Bell JJ).
As to the “reasonable observer”, in Laurie at [145], Heydon, Kiefel and Bell JJ affirmed that a reasonable observer would note the possibility of the evidentiary position changing between the previous proceeding and the subsequent proceeding.
In R v Burrell (2007) 175 A Crim R 21; [2007] NSWCCA 79 at [11], McClellan CJ at CL (with whom the other members of the New South Wales Court of Criminal Appeal agreed) stated that:
“The ordinary fair minded person understands that in the exercise of the judicial function it will be necessary, from time to time, for a judge to reconsider matters which have previously been considered or which may have been pronounced upon by that particular judge.”
In Sengupta v Holmes [2002] TLR 351, at [35]-[37], Laws LJ (Jonathan Parker LJ agreeing) stated that the fair-minded observer would recognise that a professional judge would be capable of departing from an earlier expressed opinion.
However, as I have indicated, applying these principles will be a matter of judgment and evaluation in the circumstances. The application of these principles to particular facts in earlier authorities, concerning as they do, the particular circumstances that may or may not have lead a judge to be disqualified, are not to be elevated to the “principles” to be applied. Nor is the application of the principles in any given case to be used as a gloss upon those principles. As the authorities demonstrate, including Laurie, the principles are relatively well established, but in the application of these principles reasonable minds may differ as to the result.”
(footnotes omitted)
In Construction, Forestry, Maritime, Mining and Energy Union[12], the Full Bench set out a more succinct summary of the applicable principles based upon a reasonable apprehension of bias as follows:
[12] The principles applicable to an application for recusal based upon a reasonable apprehension of bias were comprehensively stated in the judgment of Gleeson CJ and McHugh, Gummow and Hayne JJ in the High Court decision in Ebner. In summary, as relevant to the CFMMEU’s recusal application:
• the governing principle is that a decision-maker is disqualified if a fair-minded lay observer might reasonably apprehend that the decision-maker might not bring an impartial mind to the resolution of the question the decision-maker is required to decide;
• deciding whether a decision-maker might not bring an impartial mind to the resolution of a question that had not yet been determined is a question of possibility (real and not remote), not one of probability or prediction;
• the application of the apprehension of bias principle requires two steps: (1) identification of what it is said might lead the decision-maker to decide a case other than on its legal and factual merits; and (2) an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits;
• only once these two steps are undertaken can the reasonableness of the asserted apprehension of bias be assessed; and
• it is not possible to state in a categorical form the circumstances in which a decision-maker may properly decline to sit, since relevant circumstances will vary.
Summary of the Applicant’s Submissions
The Applicant submitted a reasonable apprehension of bias has arisen as a consequence of the Full Bench overturning the Extension of Time Decision.
The Applicant submitted that a fair-minded lay observer would conclude that having one’s decision-making skills questioned and successfully overruled has the ability to affect future decisions consciously or sub-consciously.
The Applicant also submitted that I acted in a condescending manner towards him during the case management and directions hearing on 26 April 2023 and that this constitutes an additional ground upon which I should recuse myself.
The Applicant submitted that the making of the Recusal Application has added to the bias, or in the alternative, result in bias.
Summary of the Respondent’s Submissions
The Respondent referred to the decision in Ebner v The Official Trustee in Bankruptcy[13] (Ebner) and submitted that the test for determining a recusal application. The Respondent submitted that the test requires:
1. 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;
2. Secondly, 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; and
3. Thirdly, if required and appropriate in the circumstances, it would be necessary to determine whether the apprehension is reasonable considered in the totality of all the relevant circumstances.
The Respondent submitted that the fair-minded lay observer is taken to be aware of the nature of the Extension of Time Decision and the context in which it was made.
The Respondent submitted that while there was a finding that the Applicant resigned which triggered the consideration of when time should run for the filing of the Unfair Dismissal Application, no other findings in relation to the merits were made. The Respondent submitted this demonstrates an intent by the Commission (as presently constituted) to consider all relevant evidence and apply the law as it relates to such evidence.
In that context, the Respondent submitted that the Applicant has not explained how the matter might not be determined other than on its factual and legal merits.
The Respondent submitted that the Recusal Application should be dismissed.
Consideration
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 the decision-maker 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.[14]
The crux of the Applicant’s case is that as the Extension of Time Decision was overturned on appeal, and that I acted in a condescending manner towards him during the case management and directions hearing on 26 April 2023, that a fair-minded lay observer might reasonably apprehend that I might not bring an impartial mind to the resolution of the merits of the Unfair Dismissal Application.
I now turn to a consideration of each of the grounds for the Recusal Application.
Extension of Time Decision
The substance of this ground is that the Extension of Time Decision was overturned on appeal.
An application for an extension of time is essentially an interlocutory application.[15] It is the practice of the Commission that upon the allocation of a matter to a member, the member will hear and determine all interlocutory applications, as well as the substantive application.
That a member of the Commission has ruled on an interlocutory application is not, of itself, sufficient to give rise to a reasonable apprehension of bias.[16] This includes interlocutory rulings that contain an appealable error.[17]
In British American Tobacco Australia Services Limited v Laurie[18] (British American Tobacco) the plurality held that whenever a judge is asked to try an issue which he or she has previously determined, whether in the same proceedings or in different proceedings, and whether between the same parties or different parties, the judge will be aware that different evidence may be led at the later trial.[19]
In ResMed Limited v Australian Manufacturing Workers Union[20], Wigney J stated that:
…it is necessary to appreciate that an ordinary fair-minded observer would understand that, like a judge, a member of the FWC would, from time to time, be required to reconsider matters which might have been previously pronounced upon by the member, and would be capable of departing from an earlier expressed opinion if there was reason to do so: R v Burrell [2007] NSWCCA 79; (2007) 175 A Crim R 21 at [11]; Sengupta v Holmes [2002] EWCA Civ 1104; [2002] TLR 351 at [35]- [37]; Kirby v Centro Properties Ltd(No 2) (2011) 202 FCR 439 at [20]-[22]. Once that is appreciated, there could be no basis for finding that a fair-minded observer might reasonably apprehend that Vice President Hatcher might not bring an impartial mind to any issue that might arise in relation to the construction of the AMWU’s rules.[21]
While I determined that the Applicant resigned and the date of resignation for the purposes of determining whether the Unfair Dismissal Application was filed within 21 days of the date of dismissal[22], I have not formed any view as to whether the Applicant was forced to do so because of conduct, or a course of conduct, engaged in by the Respondent.[23]
Apart from the fact that the Full Bench upheld the appeal of the Extension of Time Decision, the Applicant has not otherwise identified any matter that might lead me to decide this matter other than on its legal and factual merits.
As the Full Bench in Captain Lucas v Qantas stated:
…the fair-minded lay observer would be taken to know that a tribunal decision-maker may be required, as a matter of course, to make interlocutory rulings and engage in exchanges with parties’ representatives as to issues which arise in the course of a hearing, and would not consider that conduct of this nature might compromise the decision-maker’s impartiality as to the ultimate decision to be made in that or a related matter.[24]
Accordingly, I am not satisfied that this ground is a factor that would lead me to decide this case other than on its legal and factual merits. Furthermore, I do not consider there is a logical connection between the Extension of Time Decision being overturned and the possibility that I might depart from impartial decision making, either because I have prejudged the Unfair Dismissal Application or for any other reason.
Case Management and Directions Hearing on 26 April 2023
As noted above, the Applicant submits that I acted in a condescending manner towards him during the case management and directions hearing. The case management and directions hearing took place over Microsoft Teams Audio and was recorded.
The relevant part of the transcript records the following exchange between the Applicant and myself:
“THE COMMISSIONER: …do you wish to have the opportunity to make any further submissions, or do you wish to rely on the matters that are filed in the Form F1 application?
MR OAKES: How would I make those submissions?
THE COMMISSIONER: At a hearing on Tuesday 2 May.
MR OAKES: Yes. So would I have to make submissions prior to that?
THE COMMISSIONER: I will give you the opportunity to make oral submissions.
MR OAKES: On the day?
THE COMMISSIONER: On the day.
MR OAKES: Yes, that’s fine by me.
THE COMMISSIONER: So you want the opportunity to make further oral submissions?
MR OAKES: Yes, I think so.
THE COMMISSIONER: It’s your application.
MR OAKES: Yes.
THE COMMISSIONER: I will ask again then. I am proposing that the matter be listed on Tuesday afternoon if you want the opportunity to make further oral submissions. If you don’t want to avail yourself of that opportunity then I won’t proceed to list it, I will determine it on what you filed. But if you wish to have the opportunity, if there’s something more you wish to say, I suppose that’s what I’m asking.
MR OAKES: Okay. We can just do it with what I’ve filed if that works for you. I don’t have a lot of time on my hands to (indistinct).
THE COMMISSIONER: It’s not about what works for me, Mr Oakes. I’m giving you the opportunity.
MR OAKES: Okay. All right, let’s have another hearing on Tuesday then and I can file more - like I can talk about it more, have an oral representation of what I’d like to see.”[25]
In the above exchange I am seeking to confirm whether the Applicant wishes to be heard further in relation to the Recusal Application, or whether he wishes to rely on the content of the Form F1 Recusal Application.
I am not satisfied on the basis of the above exchange that there is any real possibility that a fair-minded lay observer, with knowledge of the material facts in context of the proceedings, might apprehend that I might depart from impartial decision making, either because I have prejudged the Unfair Dismissal Application or for any other reason.
Conclusion
There is no discernible logical connection between the matters raised by the Applicant and an apprehension that I might decide the Unfair Dismissal Application other than on its legal and factual merits. Accordingly, I decline to recuse myself from further dealing with the Unfair Dismissal Application.
The Recusal Application is dismissed.
COMMISSIONER
Appearances:
Mr L Oakes, Applicant.
Ms D Sinha, for the Respondent.
Hearing details:
2023.
Sydney (via Microsoft Teams video-link):
2 May.
[1] Luke Alexander Oakes v Fernance Enterprises Pty Ltd[2022] FWC 3138 (Extension of Time Decision).
[2] Ibid at [37]-[38].
[3] Section 394(3)(a) of the FW Act.
[4] Extension of Time Decision at [46]-[52].
[5] Extension of Time Decision at [59]-[61] and Order (PR748326).
[6] Luke Alexander Oakes v Fernance Enterprises Pty Ltd T/A Autobarn Lismore[2023] FWCFB 69 (Appeal Decision) at [41]-[43].
[7] [2023] FWCFB 51.
[8] Appeal Decision at [41]-[43].
[9] Recusal Application (Form F1), Part 1.1.
[10] [2019] FWCFB 3855.
[11] Watpac at [29], citing Kirby v Centro Properties Limited (No 2) [2011] FCA 1144 at [8]-[23].
[12] [2019] FWCFB 214 at [12].
[13] [2000] HCA 63.
[14] See [20] above and Re Finance Sector Union of Australia; Ex parte Illaton Pty. Limited (1992) 107 ALR 581 at 583.
[15] Broadbent v Goulburn Flight Training Academy P/L[2021] FWCFB 2794 at [28].
[16] Captain Anthony Lucas v Qantas Airways Limited[2023] FWCFB 80 (Captain Lucas v Qantas) at [20].
[17] Michael Wilson & Partners Limited v Nicholls [2011] HCA 48 at [67], [116].
[18] [2011] HCA 2.
[19] Ibid at [145] (per Heydon, Kiefel and Bell JJ).
[20] [2015] FCAFC 106.
[21] Ibid at [45].
[22] Extension of Time Decision at [33]-[38].
[23] Ibid at [56]-[57].
[24] Captain Lucas v Qantas at [20].
[25] Transcript 26 April 2023 at PN14-PN29
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