Mr Daniel O'Brien v Catholic Church of the Diocese of Darwin Property Trust
[2024] FWC 2433
•9 SEPTEMBER 2024
| [2024] FWC 2433 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Daniel O’Brien
v
Catholic Church Of The Diocese Of Darwin Property Trust
(U2024/6052)
| COMMISSIONER RIORDAN | SYDNEY, 9 SEPTEMBER 2024 |
Application for an unfair dismissal remedy
Mr Daniel O’Brien (the Applicant) filed an Unfair Dismissal Application on 28 May 2024 after he was dismissed by the Catholic Church Of The Diocese Of Darwin Property Trust (the Respondent) on 8 May 2024.
A Conference/Directions Conference was held on 12 July 2024.
The parties agreed for me to participate in this Conference on the basis that I would not prejudice myself as a result of anything that was said during this Conference. The Conference proceeded on a without prejudice basis.
The parties could not reach a negotiated settlement at this Conference and Directions were set for the Hearing of the matter. The Applicant submitted his witness statement and an outline of submissions in accordance with the Directions on 2 August 2024. The Respondent submitted their material on 23 August 2024. The Applicant submitted his reply submission on 30 August 2024, where he raised, for the first time, a request that I recuse myself from hearing his unfair dismissal application due to apprehended bias.
The Applicant has reached this position based on my involvement in his section 372 General Protections Application (matter C2024/1680). I accept that the Applicant is not an expert when it comes to the provisions of the Fair Work Act 2009 (the Act) and it would appear that he has conflated his two applications.
The Commission is required to conduct a conference in relation to a general protections’ application. There is no capacity to arbitrate (except by consent), and parties usually end up before the Court if the matter does not settle before the Commission. In this regard, the Commission is merely a facilitator of the negotiation, which is the role that I undertook on 16 April 2024. Whilst the parties reached an agreement at the Conference, the Applicant decided to not sign the Deed when it was presented to him.
I do not accept that the Applicant was ambushed or bullied at this Conference. The Applicant was represented by Mr Patrick Turner, Partner, from Maurice Blackburn, one of the most proactive labour law firms in Australia. It would appear that the Applicant may have been under the misapprehension that the Conference was some kind of Hearing. If the Applicant was not aware that the Conference was an attempt to initially settle his claim, then that is a matter for the Applicant to raise with Mr Turner, it is certainly not the fault of the Commission.
The relevant provisions of the act are:
372 Application for the FWC to deal with a non - dismissal dispute
If:
(a) a person alleges a contravention of this Part; and
(b) the person is not entitled to apply to the FWC under section 365 for the FWC to deal with the dispute;
the person may apply to the FWC under this section for the FWC to deal with the dispute.
373 Application fees
(1) The application must be accompanied by any fee prescribed by the regulations.
(2) The regulations may prescribe:
(a) a fee for making an application to the FWC under section 372; and
(b) a method for indexing the fee; and
(c) the circumstances in which all or part of the fee may be waived or refunded.
374 Conferences
(1) If:
(a) an application is made under section 372; and
(b) the parties to the dispute agree to participate; the FWC must conduct a conference to deal with the dispute.
Note 1: For conferences, see section 592.
Note 2: The FWC may deal with a dispute by mediation or conciliation, or by making a recommendation or expressing an opinion (see subsection 595(2)).
(2) Despite subsection 592(3), the FWC must conduct the conference in private.
375 Advice on general protections court application
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.
[Emphasis added]
The Applicants Unfair Dismissal Application is an entirely different application which relates to separate provisions of the Act. The general protection provisions of the Act are not relevant to whether an employee was unfairly dismissed (section 381 - 393).
Following the Conference on 12 July 2024, I asked my Associate to write to the Respondent to request that they commit their without prejudice offer to the Applicant to resolve his unfair dismissal application in writing. I did this to allow the Applicant an opportunity to seek legal advice on this offer because he was self-represented at this Conference.
Relevant Law
The principles relating to disqualification on the ground of apprehended bias were summarised by Middleton J in Kirby v Centro Properties Limited (No 2).[1] Of particular
relevance to this matter is the following:
“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.
…
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]).
…
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.”(Emphasis added).
Where an apprehension of bias is said to arise by reason of prejudgment, the principles outlined by the Full Court of the Federal Court in Cabcharge Australia Ltd v Australian Competition and Consumer Commission,[2] apply:
“The test for apprehended bias is the same wherever it arises, although the context in which it falls to be applied will clearly affect how the test is applied. One particular occasion of apprehended bias is where it is said, as Cabcharge had alleged here, that the judge has relevantly prejudged matters in controversy. In this context, disqualifying bias results in a state of mind that is not open to persuasion. That is, in this species of apprehended bias, “[t]he state of mind described as bias in the form of prejudgment is one so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented”: see Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 … at 531-2 [71]-[72] per Gleeson CJ and Gummow J. That is, in such a case as the present, it must be firmly established that a reasonable observer might conclude that the decision-maker might not bring to his or her task an impartial mind by reason of prejudgment, in the sense that the decision-maker might be so committed to a conclusion as to be incapable of persuasion to a different view: see Re JRL; Ex parte CJL (1986) 161 CLR 342 … at 352 per Mason J.”
I make no comment about the alleged “low offer” from the Respondent. All offers, from both parties, made before me in Conference, are done so on a without prejudice basis.
The Applicant also seems to be under the misapprehension that the Commission has some power over employers to direct them not to undertake an action against an employee, i.e., to interfere in a company’s managerial prerogative to operate their company. The Commission does not have the jurisdictional power to act in such a proactive manner. The Commission is like a Court, where it adjudicates on actions and issues in a reactive manner, i.e., after the action has occurred. It is not open to the Commission to “uphold the Applicants statutory protections” before the Company has taken any action.
It is also common for a Commission member to deal with the same parties on a regular basis. However, I note that the Applicants Unfair Dismissal Application is the only matter that I have presided over as I only conducted a Conference in his other Application.
Conclusion
I have taken into account the oral and written subs of the parties in determining this matter.
I agree with the Respondent that there is no basis for me to recuse myself.
The Applicant has conflated his two applications that he has made this year. They are not connected.
I have made no comment, nor do I hold any view, in relation to the merits of the Applicants Unfair Dismissal Application. The outcome in the Applicants General Protections matter is simply not relevant to this current application.
The Application to recuse myself is dismissed. The Hearing will proceed as timetabled in the Directions, on Monday 16 September 2024.
COMMISSIONER
Appearances:
Mr D O’Brien, the Applicant.
Mr M Dunne, on behalf of the Respondent.
Hearing details:
Microsoft Teams.
6 September 2024.
[1] (2011) 202 FCR 439, at [8] to [23].
[2] [2010] FCAFC 111 at [25].
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