Matthew John O'Sullivan v Curtin University - [2022] FWC 2902

[2022] FWC 2902

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Matthew John O’Sullivan
v

Curtin University

(U2022/5474)

DEPUTY PRESIDENT BEAUMONT

PERTH, 2 NOVEMBER 2022

Application for an unfair dismissal remedy

Mr O’Sullivan (the Applicant) made an unfair dismissal application under s 394 of the Fair Work Act 2009 (Cth) (the Act), alleging that that termination of his employment with Curtin University (the Respondent) was harsh, unjust or unreasonable. The unfair dismissal application was allocated to my Chambers on 13 October 2022. On that same day, directions were issued to the parties regarding the programming of the matter. By email dated 18 October 2022, and in reply to the 13 October 2022 directions, the Applicant filed an application seeking that I recuse myself from further dealing with his application.

The grounds for the Applicant’s recusal application, have been framed by the Applicant in the following terms:

The Applicant submits that the Chambers of Deputy President BEAUMONT gives rise to a reasonable apprehension of prejudice and bias through the following actions and/or
inactions:
1. The Chambers DP BEAUMONT is currently Chair of the Pharmaceutical Benefits
Remuneration Tribunal and has been since 29 May 2021. This is a paid position as
defined in the Remuneration Tribunal (Remuneration and Allowances for holders of
Part-time Public Office) Determination, 2021.

The application arises in circumstances where the Applicant worked for the Respondent as an Infrastructure Manager. On 16 December 2021, it was said that the Respondent’s Director of Properties, Facilities and Development, a Mr Urquhart, emailed the Applicant to inform him that he would be required to provide evidence of being vaccinated against COVID-19 in compliance with the Government of Western Australia’s vaccine mandate.

According to the Respondent, at all relevant times during his employment, the Applicant was a person covered by the directions issued under the Public Health Act 2016 (WA). Those directions were the Building and Construction Industry Worker (Restrictions on Access) Directions (No 3) (Directions). The Respondent contended that as an Infrastructure Manager, the Applicant was required to attend building and construction sites and was therefore a worker within the meaning of the Directions.
Over the course of January 2022, correspondence passed between the Applicant and Mr Urquhart regarding the Applicant’s failure to comply with, what the Respondent considered to be, lawful and reasonable directions and the Directions.

By letter dated 17 February 2022, the Applicant was informed that his employment was to be terminated with notice. The basis for the Applicant’s dismissal was the Applicant’s decision to decline to be vaccinated which, said the Respondent, amounted to an admission of the allegations that had been put to the Applicant. Those allegations, which were set out in correspondence to the Applicant of 3 February 2022, were, in short, a failure to comply with the Directions and a failure to comply with the Respondent’s lawful and reasonable instruction. The Respondent identified that the Applicant could not perform the inherent requirements of his position entirely…

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.

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Details

Case: [2022] FWC 2902
Decision Date: 2 NOVEMBER 2022

CaseChat Overview and Summary

Matthew John O'Sullivan has applied to the Fair Work Commission for a remedy in relation to his dismissal from Curtin University. O'Sullivan contends that his dismissal was unfair as it was harsh, unjust or unreasonable. Curtin University, the Respondent, contends that O'Sullivan was dismissed for refusing to provide evidence of COVID-19 vaccination, in breach of the Public Health Act 2016 (WA) and Curtin University's lawful and reasonable directions. O'Sullivan has applied for the Deputy President of the Fair Work Commission, Beaumont, to recuse themselves from hearing and deciding his application on the basis that a fair-minded lay observer might reasonably apprehend bias in light of the Deputy President's concurrent role as Chair of the Pharmaceutical Benefits Remuneration Tribunal (PBRT). The PBRT is established under the National Health Act 1953 (Cth) and is responsible for determining the manner in which the Commonwealth price for pharmaceutical benefits is to be worked out for the purpose of payments to approved pharmacists in respect of the supply of pharmaceutical benefits. O'Sullivan contends that the Deputy President's role as Chair of the PBRT might lead them to decide the unfair dismissal application other than on its legal and factual merits. The Deputy President rejected O'Sullivan's application for recusal. In doing so, the Deputy President noted that O'Sullivan did not provide any basis for his assertion that the Deputy President's role as Chair of the PBRT might lead them to decide the unfair dismissal application other than on its legal and factual merits. Further, the Deputy President noted that the functions of the PBRT, its statutory remit, and the functions and authority of the position of Chairperson, made it difficult to ascertain the factor which might lead the Deputy President to decide O'Sullivan's unfair dismissal case other than on its legal and factual merits. The Deputy President also found that O'Sullivan had not articulated a logical connection between the matter and the apprehended deviation from the course of deciding the case on its merits. Accordingly, the Deputy President found that O'Sullivan's contention of a reasonable apprehension of bias was not reasonable when the totality of all the relevant circumstances were examined and dismissed the application for recusal. An Order to that effect is issued concurrently with this decision. Further directions will issue shortly with respect to the programming for O'Sullivan's unfair dismissal application.

Orders