Matthew John O'Sullivan v Curtin University
[2022] FWC 2902
•2 NOVEMBER 2022
| [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 from home, and that he had been given a fair and reasonable opportunity to comply with the Directions and the Respondent’s instruction.
In accordance with clause 68.7.4 of the Curtin University Academic, Professional and General Staff Agreement 2017-2021,[1] on 22 February 2022, the Applicant sought a review of his termination of employment.
The Respondent submitted that its Review Committee deliberated on the sanction but on 4 April 2022, unanimously concluded that the imposed sanction was fair and reasonable and should stand. It followed that on 27 April 2022, the Applicant was advised that the original disciplinary sanction stood and the date of termination of employment was updated to 27 April 2022.
In his Form F2, the Applicant submitted his employment had been terminated because he had not provided private medical information, which he said was protected under s 16B of the Privacy Act 1988 (Cth) (Privacy Act). The Applicant further submitted that as the Respondent is a tertiary institution and therefore subject to Federal laws, no State law could be imposed upon it, and notwithstanding requests for the Respondent to provide him with a risk assessment, no risk assessment was forthcoming.
It is against this background that the Applicant has brought his recusal application.
It is further noted that the Respondent declined to file submissions or other materials in response to the recusal application and was content for the matter to be dealt with on the papers. For his part, the Applicant filed additional submissions in support of his recusal application and noted that whilst he was content to have the matter dealt with on the papers:
… I intent [sic] to proceed with the recusal hearing on papers, however, I would like to have it on record that if DP Beaumont is to preside over the Recusal Hearing on 2 November 2022, that this act in itself is prejudicial and the hearing can be considered an act procedural misconduct.
Legal framework
It is well established that a Commission member should not hear a case if there is a
reasonable apprehension that they are biased.[2] What constitutes a reasonable apprehension of
bias involves deciding whether a ‘fair-minded lay observer’ would reasonably apprehend that the decision maker would not decide a case impartially and without prejudice.[3]
Further, it is accepted that whilst it is important that justice must be seen to be done, it is of equal importance that Commission members discharge their duty to hear the evidence and decide the matter.[4] This means that members should not accept the suggestion of apprehended bias too readily[5] and simply refer matters to be allocated to other members.
On receiving a recusal application, it is incumbent on that member of the Commission, to hear the application and consider whether there are grounds to recuse oneself from dealing with the matter. As was said by the Full Bench in Loretta Woolston v The Uniting Church in Australia Property Trust (Q.) t/a Blue Care Bli Aged Care Facility (Woolston),[6] in the Australian legal system, any application that a decision-maker, whether a judge of a court or a member of an arbitral or administrative tribunal or a person conducting an inquiry should recuse herself or himself from hearing and deciding a matter on the ground of actual or apprehended bias, is to be made and determined in the first instance by the decision-maker.
In the recent decision of the Full Bench in Woodside Energy Ltd v The Australian Workers’ Union (Woodside),[7] the principles applicable to apprehended bias, as enunciated in Ebner v Official Trustee in Bankruptcy (Ebner),[8] were summarised. The Full Bench stated:
… In summary, a judge or tribunal member is disqualified if a fair-minded lay observer might reasonably apprehend that they might not bring an impartial mind to the resolution of the question they are required to decide. That principle gives effect to the requirement that justice should both be done and be seen to be done, a requirement which reflects the fundamental importance of the principle that the tribunal be independent and impartial.
Regarding the application of the apprehension bias principle, the Full Bench acknowledged two steps were required. The first, required the identification of the factor which might lead the judge or tribunal member to decide a case other than on its legal and factual merits.[9] The second, required the articulation of the logical connection between the matter and the apprehended deviation from the course of deciding the case on its merits.[10] The Full Bench further noted the necessity to determine whether the apprehension is reasonable considered in the totality of all the relevant circumstances.
At this juncture it proves timely to further describe the circumstances.
The relevant circumstances
Clearly, the Applicant’s recusal application centres on my appointment as the Chair of the Pharmaceutical Benefits Remuneration Tribunal (PBRT).
The National Health Act 1953 (Cth) (NHA) establishes the PBRT. Section 98A of the NHA provides:
1) 98A Establishment of Pharmaceutical Benefits Remuneration Tribunal
(1)For the purposes of this Part, there is hereby established a Tribunal to be known as the Pharmaceutical Benefits Remuneration Tribunal.
(2)The Tribunal shall consist of:
(a)a Chairperson appointed by the Governor‑General; and
(b)4 additional members appointed by the Minister.
(2A)The Minister:
(a)must appoint as an additional member at least one person who has been, but is no longer, engaged either directly or indirectly in community pharmacy; and
(b)is to make that appointment only after he or she has consulted with the Pharmacy Guild of Australia.
(3)An appointment under subsection (2) shall be on a part‑time basis.
(4)A person is not eligible to be appointed as Chairperson unless the person is a Deputy President of the Fair Work Commission.
The function of the PBRT is set out in s 98B, which reads:
1) 98B Functions of Tribunal
(1)The functions of the Tribunal are:
(a)to determine the manner in which the Commonwealth price for particular quantities or numbers of units of all or any pharmaceutical benefits is to be worked out for the purpose of payments to approved pharmacists in respect to the supply by them of pharmaceutical benefits; and
(c)if an agreement referred to in section 98BAA provides for the Tribunal to perform functions under the agreement—those functions.
(2) A manner determined under paragraph (1)(a) shall:
(a)in the case of a pharmaceutical benefit that is a listed brand of a pharmaceutical item—take as a basis the approved ex‑manufacturer price or a proportional ex‑manufacturer price of the brand of the pharmaceutical item that was in force on the first day of the month of the year in which the supply occurs; and
(b)in the case of other pharmaceutical benefits—take as a basis the basic wholesale price of each ingredient that is applicable on the day on which the supply occurs; and
(c)provide for the addition of such fees and other amounts as are determined by the Tribunal.
(3)In subsection (2):
basic wholesale price in relation to an ingredient in a pharmaceutical benefit, means the amount that The Pharmacy Guild of Australia and the Minister agree from time to time is to be taken to be, for the purposes of this Part, the appropriate price for sales of that ingredient to approved pharmacists.
(4)The Tribunal may approve criteria that it considers to be appropriate for use in determining the nature or magnitude of fees or other amounts referred to in paragraph (2)(c), and may, at any time, vary or revoke such criteria.
(5)In determining fees or other amounts referred to in paragraph (2)(c), and in approving criteria under subsection (4), the Tribunal must have regard to national minimum wage orders of the Fair Work Commission, and, in particular, any statements by the Commission about the effect of wage increases on productivity, inflation and levels of employment.
Section 98BAA(1) of the NHA requires that, where the Minister of Health (acting on the Commonwealth’s behalf) and the Pharmacy Guild of Australia (Guild) (or another pharmacists’ organisation representing a majority of approved pharmacists) enter into an agreement relating to the manner in which the Commonwealth price for pharmaceutical benefits is to be ascertained, the PBRT, when making a determination pursuant to s 98(1)(a) of the Act, is to give effect to the terms of that agreement.
On 24 May 2015, the then Minister for Health, on behalf of the Australian Government, and the Guild, signed the Sixth Community Pharmacy Agreement which commenced on 1 July 2015. The Commonwealth price structure determined in Part 4 of the Sixth Agreement took effect from 1 July 2015.
The Sixth Agreement sets out the Commonwealth price structure for the wholesale mark-up, dispensing fees for ‘Ready Prepared and Extemporaneously Prepared Pharmaceutical Benefits’ and the ‘Dangerous Drug fee’. These fees are said to recognise the clinical input from pharmacists.
On 20 June 2017, the Sixth Agreement was amended, with effect from 1 July 2017 to incorporate additional fixed funding. The Amending Determination issued amended the Commonwealth price (Pharmaceutical benefits supplied by approved pharmacists) Amendment Determination 2015, to ensure that the Determination continued to give effect to the terms of the Sixth Agreement. While the PBRT made subsequent determinations such as that made in 2018 – Commonwealth price (Pharmaceutical benefits supplied by approved pharmacists) Amendment Determination 2018, such Determinations were made pursuant to the Sixth Agreement.
A Seventh Agreement between the Commonwealth, the Guild and the Pharmaceutical Society of Australia Limited, commenced on 1 July 2020 and expires on 30 June 2023. It includes an agreement between the Commonwealth Government and the Guild for the purposes of s 98BAA(1) of the Act – again setting out the manner in which the Commonwealth price for pharmaceutical benefits is to be calculated. The most recent Determination made by the PBRT in respect of the Seventh Agreement was issued on 1 June 2022.
Section 99B of the NHA provides that the Chairperson of the PBRT shall not be remunerated:
1) 99B Remuneration and allowances
(1)The Chairperson shall not be paid remuneration or allowances in his or her capacity as Chairperson but, for the purposes of the payment of travelling expenses to him or her, his or her duties as Deputy President of the Fair Work Commission shall be deemed to include his or her duties as Chairperson of the Tribunal.
(2)An additional member shall be paid such remuneration as is determined by the Remuneration Tribunal, but, if no determination of that remuneration by that Tribunal is in operation, the additional member shall be paid such remuneration as is prescribed.
(3)An additional member shall be paid such allowances as are prescribed.
(4)Subsections (2) and (3) have effect subject to the Remuneration Tribunal Act 1973.
Consideration
Addressing firstly the Applicant’s contention that to preside over his recusal application is, in and of itself, prejudicial and constitutes an act of procedural misconduct. The Applicant provides no basis for his assertion. Further, as has been identified, the approach I have adopted in dealing with the Applicant’s recusal application is one that is endorsed by the Full Bench and the High Court.[11]
Turning to the first step in the application of the apprehension of bias principle. The Applicant identifies that my position as Chairperson of the PBRT might lead me to decide the unfair dismissal application other than on its legal and factual merits. The Applicant submits that the position of Chairperson of the PBRT is a paid position and the onus is upon me to disclose details of this matter. On this point, the Applicant speaks to disclosing my relationship and dealings with the PBRT to demonstrate no bias exists.
The PBRT is established under statute. The NHA requires that a Deputy President of this Commission is appointed to the position of Chairperson. Contrary to the Applicant’s assertion, the position of Chairperson whilst bringing with it the responsibilities as outlined in the NHA, is not a remunerated position.
As observed, the NHA requires that, where the Minister of Health (acting on the Commonwealth’s behalf) and the Guild enter into an agreement relating to the manner in which the Commonwealth price for pharmaceutical benefits is to be ascertained, the PBRT, when making a determination pursuant to s 98(1)(a) of the Act, is to give effect to the terms of that agreement. Over the past four years, if not more, such an agreement has been in place (Sixth Agreement and Seventh Agreement). It is therefore the case that the PBRT has given effect to an agreement which was reached by the Minister of Health and the Guild.
Given the functions of the PBRT, its statutory remit, and the functions and authority of the position of Chairperson, it is difficult to ascertain the factor which might lead me to decide the Applicant’s unfair dismissal case other than on its legal and factual merits. The situation is made all the more challenging given the Applicant has not expanded upon why holding such office gives rise to a reasonable apprehension of bias. The apogee of the Applicant’s argument is simply my holding of such position, and whilst the Applicant has filed submissions, they do not advance the Applicant’s argument further. To conclude, the Applicant has failed to make out the factor which might lead me to decide his case other than on its legal and factual merits.
For the sake of fulsomeness, the second step warrants consideration. To recap, the second step in the apprehension of bias principle requires the articulation of the logical connection between the matter and the apprehended deviation from the course of deciding the case on its merits. Whilst a logical connection is referred to in the assessment, perhaps the preferred connection should be one that is rational. Notwithstanding, it is the logical connection that is articulated and is therefore applied.
It should be said that I have been unable to discern in the Applicant’s submissions his articulation of the existence of a logical connection. At best the following is observed in his submissions:
…The tribunal negotiations [sic] the price paid by Federal Government to pharmacists and other parties that provide pharmaceutical products to market under the pharmaceutical benefits scheme. It is widely known that pharmacist have been administering COVID-19 gene therapies (the manufacture mRNA trial data definition, purporting to be a vaccine) to people across the country since Nov 2021.
As you maybe aware, my Fair Work claim relates to unfair dismissal for not providing personal medical information relating to COVID-19 gene therapies, which has led to my employment being termination [sic] at Curtin University and defined as serious misconduct for not providing personal medical information.
In this respect I level no criticism toward the Applicant, appreciating that he appears to consider my appointment as Chairperson of the PBRT as being self-explanatory and in and of itself presenting as the logical connection. However, in the absence of submissions detailing the logical connection between the unfair dismissal application and the reasonable apprehension bias, it is not for the Commission to postulate on what that connection may or may not be – logical or otherwise.
I have however considered the grounds upon which the Applicant has premised his unfair dismissal application in light of the recusal application. Those grounds include his non-disclosure of private medical information (and the application of the Privacy Act), an assertion the Respondent was subject to Federal Laws thereby precluding the Western Australian Government from imposing laws upon the Respondent, and the failure of the Respondent to provide a risk assessment. When one considers the grounds relied upon by the Applicant in support of his contention that his dismissal was unfair, there is simply no connection, let alone one that is logical, to the PBRT’s functions under the NHA, the authority it exerts, or the powers the NHA provides to the position of Chairperson of the PBRT.
Conclusion
For the reasons provided, the Applicant’s contention of a reasonable apprehension of bias, is not reasonable when the totality of all the relevant circumstances are examined. It is for this reason his recusal application must fail and is consequently dismissed. An Order[12] to that effect is issued concurrently with this decision. Accordingly, further directions will issue shortly with respect to the programming for the Applicant’s unfair dismissal application.
DEPUTY PRESIDENT
Matter Determined on the Papers.
[1] [2018] FWCA 3472; AE428811; PR608094.
[2] R v Watson; Ex parte Armstrong (1976) 136 CLR 248, 258‒263, cited in Livesey v New South Wales Bar Association (1983) 151 CLR 288, 293‒294.
[3] Dain v Bradley & Grant [2012] FWA 9029, [14], citing British American Tobacco Australia Services Limited v Laurie (2011) 242 CLR 238, [104].
[4] Re J.R.L. Ex parte C.J.L. (1986) 161 CLR 342, 352.
[5] Ibid.
[6] [2016] FWCFB 278 [10] (Woolston), citing Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 357, [74] (Ebner).
[7] [2022] FWCFB 192 (Woodside).
[8] Ebner (n 6).
[9] Woodside (n 7) [38] citing Ibid [8] (Gleeson CJ, McHugh, Gummow and Hayne JJ).
[10] Woodside (n 7) [38] citing Ebner (n 6) [8] (Gleeson CJ, McHugh, Gummow and Hayne JJ).
[11] Woolston (n 6) [10], citing Ebner (n 6) [74].
[12] PR747548.
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