Mr Dimitri Torcello v

[2024] FWC 3520

[2024] FWC 3520

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.365 - Application to deal with contraventions involving dismissal

Mr Dimitri Torcello
v

KoalaKare Pty Ltd

(C2024/8087)

DEPUTY PRESIDENT O'NEILL MELBOURNE, 17 DECEMBER 2024

Application to deal with contraventions involving dismissal – recusal application dismissed.

1. Mr Dimitri Torcello (Applicant) has made a general protections application involving dismissal under s.365 of the Fair Work Act 2009 (Cth) (Act). KoalaKare Pty Ltd (Respondent) has objected to the application including on the basis that the Applicant did not file the application within the 21-day time limit as required by the Act,[1] and that the Applicant was not dismissed.

1. The jurisdictional objection that the application was made outside of the 21-day time limit has been listed to be heard on 23 December 2024. 

1. There was considerable correspondence from the parties concerning various matters, including an application by the Respondent to be legally represented and an application by Mr Torcello made on 2 December 2024 for an order to produce documents. The documents sought to be produced were various documents including payroll and employment records for the purpose of verifying the claims made by the Respondent that it was a small business, whether the Respondent had accurately represented its business structure, employee count and operations, and whether there had been an attempt to mislead the Commission.

1. I listed the matter for Mention on 5 December 2024 to deal with the Respondent’s application for permission to be legally represented and the Applicant’s application for an order to produce documents.

1. In relation to the Respondent’s application to be legally represented, the Respondent in an email dated 2 December 2024, was described as a ‘small business’ that did not have an internal HR department and relied on an external legal firm for all employment-related matters. The Respondent subsequently clarified that it did not contend that it was a small business within the meaning of the Act. At the Mention, after expressing my provisional view that I was not inclined to grant the permission sought in relation to the hearing on 23 December 2024 regarding the extension of time issue, the Respondent decided to not press its application at this time.

1. In relation to Mr Torcello’s application for an order to produce certain documents I explained to Mr Torcello that the documents he had sought largely related to information about the size and nature of the Respondent’s business, and that it did not appear that such documents were relevant to the question being dealt with initially, namely the date the general protections application had been made and whether an extension of time should be granted.  I explained that if an extension of time was granted following the hearing on 23 December, he may wish to revisit the question and seek an order to produce the documents at that time, and if so, I would deal with it formally at that time. I indicated that unless he was able to demonstrate the relevance of any of the documents sought to the question of whether there were exceptional circumstances and an extension of time should be granted to make the application, I was not going to make the order sought. I asked Mr Torcello whether he was content to defer dealing with the application for an order to produce until after the extension of time issue was determined.  Mr Torcello indicated that he was.

1. I then offered Mr Torcello an opportunity to raise anything further at this point. In response, Mr Torcello commenced saying that he wanted a fair trial and that any discrepancy and lies would be called out.  I explained that this isn’t an opportunity to make submissions, and asked again whether there were any other issues he wanted to raise about how the matter was going to proceed, to which Mr Torcello indicated there were not and that he would attend the hearing on 23 December.  The Mention lasted approximately 10 minutes.

The Recusal Application

1. Following the Mention, the Applicant requested that I recuse myself from dealing with his application. 

1. I listed Mr Torcello’s recusal application for Hearing on 13 December 2024 and directed that by 11 December 2024 he file and serve any additional submissions he wished to rely upon.  Mr Torcello subsequently confirmed that he relied on the document titled ‘A Formal Request for Recusal Document’ which he had sent to chambers on 9 December 2024. The document set out the grounds for the recusal application as follows:

“1. Perception of Procedural Bias and Prejudice
During the mentions hearing on December 5th, I was prematurely interrupted while raising critical concerns regarding inaccuracies in the respondent’s submissions. This intervention curtailed my ability to present arguments fully and fairly. Furthermore, these inaccuracies, specifically related to the respondent’s misrepresentation as a “small business,” were not adequately addressed or questioned by the tribunal. This handling of the matter has created a clear perception of bias, eroding my confidence in the impartiality of the process.

The High Court in Ebner v Official Trustee in Bankruptcy [2000] HCA 63 holds that justice must not only be done but must also be seen to be done. Your conduct during the mentions hearing directly contravenes this principle, casting doubt on the fairness of these proceedings.

2. Connection to Procedural Concerns in Previous Matters
In matters C2023/4051 and C2023/4398, I raised formal complaints about procedural errors and bias during hearings overseen by Chambers Clancy. These cases were handled consecutively on the same day, raising concerns of cross-contamination of judgment. Despite assurances from President Chambers Hatcher that there is no familial relationship between Francine Hoyne-Clancy and Chambers Clancy, the pattern of conduct observed in those cases appears to have extended into the handling of matter C2024/8087.

The parallels in procedural handling and perceived alignment with the legal representative, Francine Hoyne-Clancy, amplify concerns about impartiality. As established in Johnson v Johnson [2000] HCA 48, even the appearance of bias is sufficient to warrant recusal.

3. Public Confidence in the Tribunal
As a self-represented litigant, I rely on the tribunal to provide a fair and unbiased platform for adjudication. The handling of this case has undermined my confidence in this process. Upholding the perception of impartiality is essential for maintaining public trust in the tribunal, as emphasized in Kirk v Industrial Relations Commission of NSW [2010] HCA 1.”

1. At the hearing Mr Torcello elaborated on these grounds. These included that by curtailing him at the end of the Mention from saying everything he intended to about the Respondent’s claim that they are a small business, my conduct demonstrated a bias or some pre-formed perception of the case. In addition, doing so replicated his experience in other cases (which I have not been involved in), and was a very strong demonstration of favouritism towards the Respondent. Thirdly, his confidence in the process has been undermined by this action.

1. The principles stated by High Court in Ebner v Official Trustee in Bankruptcy[2] are that 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.[3] 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.[4] It remains necessary to determine whether the apprehension is reasonably considered in the totality of relevant circumstances, and this is sometimes described as a third step.[5]

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.[6]

1. Mr Torcello’s first ground for the recusal application is that he was not able at the Mention to raise “critical concerns regarding inaccuracies in the Respondent’s submissions” relating to the Respondent’s misrepresentation as a ‘small business’.  As set out above, the assertion that the Respondent was a small business was made to support its application for permission to be legally represented.  As noted above, I did not grant permission for the Respondent to be legally represented.  Consequently, having not granted permission to the Respondent to be legally represented (including on the basis that it contended it was a small business without dedicated HR support), any alleged discrepancies as to whether the Respondent was or was not a small business, were not relevant. In that context, not allowing Mr Torcello to make further submissions about the concerns he had about whether the Respondent was a small business were not relevant.  I do not consider that a fair-minded observer would have a reasonable apprehension that I would not bring an impartial and unprejudiced mind to the substantive matters raised by Mr Torcello’s application based on not allowing him to make submissions about an issue that was not presently relevant.

1. Mr Torcello’s second basis for the recusal application concerns what occurred in two other applications made by Mr Torcello that were not dealt with by me and in which I was not involved. To the extent that Mr Torcello’s concerns relate to his objection to the Respondent being represented by a legal practitioner who shares part of their surname with another Member of the Commission, at the Mention I did not grant permission by the practitioner to represent the Respondent. The Applicant was unable to identify any logical connection between the alleged apprehension of bias and the obligation to act impartially.

1. Mr Torcello’s third basis is a statement that he relies on the tribunal to provide a fair and unbiased hearing and that his confidence in the process has been undermined. This statement may reflect Mr Torcello’s subjective view, but it does not identify any alleged action or conduct on my part that might give rise to an apprehension of bias.

1. For these reasons I am not satisfied that a fair-minded observer would have a reasonable apprehension that I might not bring an impartial and unprejudiced mind to the proceedings.  I decline to recuse myself from dealing with Mr Torcello’s application, which will proceed as listed on 23 December 2024 to deal with the question of whether an extension of time to make the application should be granted.

DEPUTY PRESIDENT

Appearances:

D. Torcello, appearing on his own behalf.
D. Heath, appearing on behalf of the Respondent.

Hearing details:

2024
13 December (by Microsoft Teams)

[1] Section 366(1)(a).

[2] [2000] HCA 63; 205 CLR 337.

[3] Ibid at [6].

[4] Ibid at [8].

[5] CNY17 v Minister for Immigration and Border Protection [2019] HCA 50.

[6] Webb v The Queen [1994] HCA 30.

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