Mr Geoffery Hunter v Anthony Costello Automotive

[2017] FWC 4300

[2017] FWC 4300

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365 - Application to deal with contraventions involving dismissal

Mr Geoffery Hunter
v
Anthony Costello Automotive
(C2017/2715)

COMMISSIONER HUNT BRISBANE, 14 SEPTEMBER 2017

Application to deal with contraventions involving dismissal — application for recusal on grounds of apprehended or actual bias — whether certificate under s.368 should be issued.

[1] Mr Geoffery Hunter has made an application pursuant to s.365 of the Fair Work Act 2009 (the Act) for the Fair Work Commission (the Commission) to deal with a general protections dispute in relation to his dismissal from his employment with Anthony Costello Automotive (ACA). Mr Hunter alleged he was dismissed from ACA on 12 May 2017.

[2] Mr Hunter filed his s.365 application on 23 May 2017. The general practice of the Commission is for a staff conciliator to facilitate a telephone conference to discuss s.365 applications, in an attempt to have the parties resolve the application. In the event the application cannot be resolved between the parties, a Member of the Commission is required to determine on the material before the Member (or further inquiry, if necessary), if a certificate under s.368 of the Act should be issued.

[3] In the event a certificate is issued, an applicant then has 14 days to pursue the application before the Federal Court or the Federal Circuit Court. 1 Alternatively, it is available for the parties to reach agreement for consent arbitration before the Commission.2

[4] Section 368 of the Act states:

‘368 Dealing with a dismissal dispute (other than by arbitration)

(1) If an application is made under section 365, the FWC must deal with the dispute (other than by arbitration).

Note: The FWC may deal with a dispute by mediation or conciliation, or by making a recommendation or expressing an opinion (see subsection 595(2)). One of the recommendations that the FWC might make is that an application be made under Part 3-2 (which deals with unfair dismissal) in relation to the dispute.

(2) Any conference conducted for the purposes of dealing with the dispute (other than by arbitration) must be conducted in private, despite subsection 592(3).

Note: For conferences, see section 592.

(3) If the FWC is satisfied that all reasonable attempts to resolve the dispute (other than by arbitration) have been, or are likely to be, unsuccessful, then:

(a) the FWC must issue a certificate to that effect; and

(b) if the FWC considers, taking into account all the materials before it, that arbitration under section 369, or a general protections court application, in relation to the dispute would not have a reasonable prospect of success, the FWC must advise the parties accordingly.

(4) A general protections court application is an application to a court under Division 2 of Part 4-1 for orders in relation to a contravention of this Part.’

[5] Where I have indicated above it is the general practice for s.365 applications to have a staff conciliator facilitating a conference, it is entirely appropriate for a Member of the Commission to conduct a conference if a Member so decides.

[6] Mr Hunter alleged in his application that he was dismissed because he was forced to engage in unsafe work practices, he was not permitted to report bullying behaviour, he had issues with superannuation payments not being paid, and other staff members were given a uniform to wear and he wasn’t. He alleged that these above issues were in contravention of s.351 of the Act.

[7] Mr Hunter also filed an application under s.372 3, alleging similar workplace rights that had been breached by ACA. An application under s.372 of the Act is a general protections application which does not involve dismissal and is ordinarily made while somebody is still in employment or in a working relationship with the organisation or person alleged to have contravened the Act. Mr Hunter filed his s.372 application on 5 July 2017, more than two months after the date of his dismissal.

[8] The general practice of the Commission is for a Member to hold a conference with parties where an application under s.372 has been made. This is so because the working relationship between the parties is typically still in place.

[9] Respondent parties are not under any obligation to participate in a conference convened for an application under s.372 of the Act. Section 374 of the Act is as follows:

‘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.’

[10] Mr Anthony Costello, Director, represented ACA in both of the applications. Mr Costello informed the Commission that he would participate in the s.372 conference, and he was aware that he was required by the Act to participate in the s.365 conference.

[11] I determined that in the interest of efficiency, and given the substantial overlap of issues within the two applications, I would conduct a telephone conference with the parties having regard to both applications. This would then allow me to inquire of the parties if there was a way to resolve both applications, rather than have both parties before me relevant to the s.372 application, and then before a staff conciliator on the telephone relevant to the s.365 application.

[12] I also determined this course of action with the knowledge that typically a respondent would be unwilling to resolve the s.372 application with an applicant if the s.365 application was still open to be prosecuted.

[13] A notice of listing was sent from my Chambers on 14 July 2017 for a telephone conference on 20 July 2017. Neither Mr Hunter nor ACA communicated with my Chambers any concern with this course of action.

[14] I understood ACA to be located in Canberra, and I had been informed that Mr Hunter had filed his applications in person in the Brisbane registry. I was informed by my Associate prior to the conference on 20 July 2017 that Mr Hunter was not permitted to attend the Commission’s Canberra registry as he was subject to a Workplace Protection Order under the Personal Violence Act 2016 (ACT) relevant to earlier attendances to the Canberra registry.

Telephone conference 20 July 2017

[15] At the commencement of the telephone conference on 20 July 2017, I held a genuine belief that Mr Hunter was not permitted to attend the Canberra registry because of what had been communicated to me in [14]. I also assumed when the telephone conference was being conducted that Mr Hunter was geographically placed in Queensland as his application stated his address for the purpose of the application was in the suburb of Edens Landing, situated in Queensland.

[16] At the commencement of the telephone conference Mr Hunter objected to the two applications being the subject of the one telephone conference. Having heard Mr Hunter’s objection, I informed Mr Hunter that my decision was for both applications to be dealt with by me on the same day in the one telephone conference in the interests of efficiency.

[17] While it is true the conference was required to be held in private, as is evident through this decision, Mr Hunter objected to some things said during the conference, and wished to agitate whether the parties have successfully resolved the s.365 application. Having conducted a hearing relevant to this issue, it is necessary to discuss in this decision relevant parts of the conference.

[18] A substantial part of the conference dealt with Mr Hunter’s concern that during his time with ACA he had been engaged as a contractor, with only a small portion of the time he worked there employed as an employee. He considered that in his role as a mechanic it might be considered ‘sham contracting’ to be treated as a contractor and not an employee. This is so for various reasons including; not operating his own business; being directed by ACA as to which work was to be performed; and other relevant indicia.

[19] It appeared to me that Mr Hunter was most concerned with not having accrued annual leave for the period he was treated as a contractor, together with not being paid superannuation. It is true Mr Hunter was also concerned with his alleged inability to influence safe work practices at ACA.

[20] After hearing from Mr Costello, I informed the parties that even if Mr Hunter had been a bona fide contractor, given he was not contracted to ACA through an incorporated entity, and he was largely engaged for his provision of labour, in my view he would be entitled to superannuation for the entire period he was both employed and engaged. 4

[21] Further, I informed the parties that if Mr Hunter was correct relevant to his concern that ACA had engaged in ‘sham contracting’, and Mr Hunter was found by a court of competent jurisdiction to have been an employee, he would be entitled to approximately nine days’ annual leave payment for the relevant period of time.

[22] In joint conference I recommended to Mr Costello he consider resolving the applications for the payment to Mr Hunter of nine days’ annual leave, together with making payments to Mr Hunter’s superannuation fund for the entire time he was performing work for ACA.

[23] I informed the parties that if agreement to resolve the two applications was reached, the parties might wish to utilise the Commission’s general terms of settlement. I explained to the parties that many applicants and respondents are comfortable utilising the Commission’s draft terms as they are drafted using plain language, and contain the most common protections both parties typically seek to conclude proceedings between them. I explained this often includes; no admission of liability, resolution of all matters between the parties, a sum of money to be paid within a prescribed time limit, mutual non-disparagement, and confidentiality. I briefly explained what each of these things mean.

[24] Mr Costello agreed that ACA would resolve the two applications for the payment to Mr Hunter of nine day’s annual leave and superannuation for the entire period he performed work for ACA. He said that ACA would agree to the Commission’s terms as outlined by me.

[25] On hearing this offer, I asked Mr Hunter what he wished to do. Mr Hunter said he agreed, and he would resolve all of his claims with ACA on the terms proposed.

[26] I informed the parties that I would prepare the written terms of settlement and it could be emailed to the parties within a short period of time that same day. I inquired of Mr Hunter if he had capacity to sign the terms the same day (as it was approaching mid-afternoon).

[27] Mr Hunter said words to the effect, “I don’t have access to a printer and scanner. I’ll go right now to the Canberra offices of the Fair Work Commission and I’ll sign them this afternoon”

[28] I had assumed Mr Hunter was in Queensland, participating in the conference, and with the understanding that he was prevented from attending the Canberra registry, I said words to the effect, “Mr Hunter, is that something that you’re going to be able to do today, as I understand there is some restriction on you attending the Canberra registry?”

[29] At this time my Associate, who had been joined on the telephone conference opened my door and informed me that the Workplace Protection Order that had been in place was now expired and he had only just learned of this.

[30] Mr Hunter said words to the effect, “No, there’s no reason I can’t attend the Canberra registry today.”

[31] The conference continued, as I understand it, on the basis that the parties agreed to resolve all matters between them on the terms earlier agreed. A sum of money was calculated, and Mr Costello committed to making the payment within 14 days, to be reflected in the written terms of settlement.

[32] The conference was coming to a natural conclusion, with Mr Costello tasked with executing the terms when they were emailed from my Chambers, and likewise for Mr Hunter. Mr Hunter then inquired if, when Mr Costello left the telephone conference, he could speak with me privately. I asked Mr Costello if he held any concerns with this request, and he stated that he did not.

[33] Upon Mr Costello leaving the telephone conference, Mr Hunter informed me that he was very upset with me, my Associate, and other people within the Commission. He informed me that Mr Costello would not have known that he [Mr Hunter] had been the subject of an earlier Workplace Protection Order, and because of what I had said, he was now embarrassed.

[34] I informed Mr Hunter that I did not consider that what I had said would result in Mr Costello drawing a conclusion that a Workplace Protection Order had been, or was in place prohibiting Mr Hunter from attending the Canberra registry. Mr Hunter stated that he was less upset with me, but more upset with other people within the Commission telling false stories about him. He stated that he considered I was only repeating what I had been told, which he stated was false.

[35] I stated to Mr Hunter that I was sorry if he had been embarrassed in any way, and I had made the inquiry of him only because I held a genuine belief that he was restricted from attending the Canberra registry and he had declared that he would be attending there the same afternoon to sign the terms of settlement.

[36] Mr Hunter suggested to me that at the relevant time of the telephone conversation I could have asked Mr Costello to leave the conversation, and made those inquiries directly of Mr Hunter. I accepted Mr Hunter’s concern.

[37] The telephone conference with Mr Hunter ended, and my Associate emailed the parties the terms to reflect the settlement that I considered had been reached during the conference. The Commission’s Canberra registry was also emailed the written terms of settlement, as I understood Mr Hunter would attend upon the registry to sign the written terms.

[38] The following email was sent by my Associate to the parties:

‘…

The Canberra registry have [sic] been provided with a copy of this deed, should either party require assistance with printing or scanning the document and forwarding it to the other party.’

[39] By 4:04pm, Mr Costello communicated to my Chambers that he had immediately made payment to Mr Hunter’s bank account of the net amount reflecting the nine day’s annual leave pursuant to the agreed terms of settlement. The superannuation payment would be made to Mr Hunter’s superannuation account in the next quarterly payment by ACA.

Events following the telephone conference

[40] Four days later, and subsequent to payment by ACA in accordance with the terms discussed at the conference, Mr Hunter sent the following email to the Commission:

‘Commissioner Hunt

This matter is not resolved’

[41] Mr Hunter sent a similar email relevant to the s.372 application.

[42] On 28 July 2017, I instructed my Associate to issue the following correspondence and directions to the parties:

‘…

In relation to C2017/2715, which is an application made under s.365 of the Act, the Commissioner is to determine whether to issue a certificate. Section 368(3) of the Act provides that the Commission must issue a certificate if it is satisfied that all reasonable attempts to resolve the dispute (other than by arbitration) have been, or are likely to be unsuccessful. The Commissioner’s preliminary view is that the parties reached in-principle agreement to resolve the matters in the conference on 20 July 2017 and therefore it would not be possible to issue the certificate. The Commissioner refers the parties to the decision of Watson VP in McCaffrey v Transdev Melbourne[2015] FWC 3400 (see attached). ‘

The Applicant is directed file and serve submissions on why the Commission should issue a certificate, having regard to the decision in McCaffrey, by no later than 4:00pm on Friday 4 August 2017.

The Respondent is directed to file and serve any submissions in reply by no later than 4:00pm on Friday 11 August 2017.

Upon receipt of material from the Applicant and the Respondent, the Commission will communicate with the parties to inquire if this matter can be determined ‘on the papers’ or whether a hearing is required.’

Complaint made by Mr Hunter

[43] In response to the directions, Mr Hunter wrote to my Chambers on 4 August 2017 stating:

‘I was bullied by Commissioner Hunt the whole conference .

The two complaints have not been heard .

It's my constitutional right to have my time before the Fair Work Commissioner .

THIS HAS NOT HAPPENED

I have filed a complaint against Commissioner Hunt .

I won't be bullied into signing anything

I WANT MY TIME IN FRONT OF THE FAIR WORK COMMISSIONER TO HEAR THE F8 application .

Please refer to Melbourne as I believe it's unethical to communicate with this office , as I have complained about your conduct .’

[44] I am aware that at or around this point in time Mr Hunter made a complaint about me to the President of the Commission.

[45] The complaints and feedback procedure is accessible on the Commission’s webpage. In relation to complaints about Members, the procedure states:

‘2. Complaints to which this procedure applies

2.1 Complaints covered and excluded

This procedure applies to complaints made to the President about the performance by another Commission Member of his or her duties, other than complaints about matters that can be dealt with in an appeal or judicial review (see 2.2 below).

Complaints about delays in handing down decisions should be made through the separate process for inquiring about delays (see 2.3 below).

2.2 Matters that can be dealt with in appeal or judicial review

A party who does not agree with a decision or order made by a Member should consider seeking an appeal or judicial review.

If a complaint is received by the President about a decision or order that is, or was, capable of being dealt with in an appeal or an application to a court, the President will advise the complainant that the matter cannot be handled under this complaints procedure.

There are time limits for making appeal and court applications. Making a complaint will not relieve a person of the requirement to comply with these time limits.’

Application for apprehension of bias or actual bias

[46] Having regard to Mr Hunter’s complaint about me, I understood that Mr Hunter’s complaint would not be able to be determined by the President of the Commission at that time, as any decision I was to make would be one that could be subject to an appeal of that decision, or judicial review.

[47] Due to the nature of Mr Hunter’s correspondence, Mr Hunter’s request for the matter to be dealt with by another Member was regarded by me as a request to recuse myself on an allegation of apprehended or actual bias. I determined that it was necessary for me to determine Mr Hunter’s bias application before I could determine whether a certificate under s.368 could be issued.

[48] A Member should not agree to recuse themselves simply because a complaint has been made but not determined, and in accordance with the Commissions’ complaint procedure, would not be determined by the President.

[49] If, having heard from all of the parties I then made a decision not to recuse myself, that is indeed a decision Mr Hunter could seek leave to appeal to a Full Bench of this Commission.

[50] The matter was subsequently listed for objections hearing on 17 August 2017. Directions were issued to the parties seeking their written evidence and submissions relevant to the recusal application and the issue as to whether a certificate should be issued.

The hearing

[51] The hearing was conducted by telephone due to the parties both being present in Canberra at this time. Mr Hunter did not provide any written material prior to the hearing. Throughout the hearing Mr Hunter repeatedly requested that I withdraw from determining the substantive issue. At one point during the hearing he requested: 5

“Can I ask for a third time for you just to honourably remove yourself from this matter and we'll have another Commissioner deal with it, please?” 

[52] During the hearing I informed Mr Hunter I would require him to take an affirmation to the Commission. I also required this of Mr Costello, so that each party’s oral statements could be taken as evidence and not submissions.

[53] Mr Hunter repeatedly refused to take an affirmation, and at one point became disconnected from the telephone hearing. When he was reconnected to the conference, and only when I informed him that if he did not take the affirmation, I would have to determine the application to recuse myself on the information before me, did he agree to take the affirmation.

[54] ACA provided a brief outline of submissions prior to the hearing and oral evidence was given by telephone by Mr Costello.

[55] In relation to the matter of apprehended or actual bias, Mr Hunter gave the following evidence: 6

‘During the conference on the 22nd you showed bias towards Anthony even to the extent where it would be a good idea if he got back to work early; being the whole issue when you refer to the matter hasn't been resolved, it should be a matter with apostrophe "s". There's two matters. I'm still confused today, right, as to which matter can and can't be heard. I don't understand that. I know for a fact that the F8 application wasn't spoken of during the conference. You yourself have refused to answer on three occasions, whether or not you have any facts regarding the F8 application, which is bias.’

You just opened the F8 application, moved straight into the sham contracting and came up with the solution, and this is the issue. It's not Anthony and myself. It's the system and myself. It's you – a mechanic can't report bullying and a mechanic can't report an unsafe vehicle. There isn't a system in place to allow us to do that, and you proved that by not even hearing it during the conference. Nobody wants to hear about the airbags which are faulty in this country at the moment. But Anthony and myself we have to perform services on these cars that someone else has decided that is safe and get them off into the public. It's certainly not Anthony's fault and it's certainly not mine, but the problem we have is you showed bias and didn't even hear the matter; gone straight to a conclusion and then told me in a conversation that I hadn't won, and two documents would be presented and they haven't.’

[56] Mr Hunter also alleged bias on the basis of my knowledge of the Workplace Protection Order that had been in place.

[57] It was submitted for ACA that during the conference on 20 July 2017, Mr Hunter was openly hostile, personally disrespectful and argumentative of the Commission rules governing conference proceedings.

[58] ACA further submitted that Mr Hunter clearly accepted the ‘remedy’ proposed and that a ‘terms of settlement’ document would be signed by both parties. Furthermore, given a settlement was agreed, Mr Costello immediately paid the monetary amount agreed and the agreed superannuation was to be paid in accordance with the normal quarterly schedule. ACA submitted these payments were made on the basis of the intent that both parties had reached an agreement that would be followed up with a settlement document to be signed in counterpart.

Approach to apprehended or actual bias

[59] The principles for dealing with allegations of bias were concisely set out by Asbury DP in Woolston v Uniting Church in Australia Property Trust (Q) T/A Blue Care Bli Bli Aged Care Facility (Woolston) 7. In Woolston the Deputy President dealt with applications for both apprehension and actual bias, and summarised as follows:8

‘As the High Court of Australia put it in Ebner v the Offical Trustee 9 “…bias whether actual or apparent, connotes the absence of impartiality.”10 A claim of actual bias requires proof that the decision maker approached the issues with a closed mind or had prejudged the matter and for reasons of either partiality in favour of a party or some form of prejudice affecting the decision, could not be swayed by the evidence in the case at hand.11 The test for apprehended bias is whether “a fair minded lay observer might reasonably apprehend that the [decision maker] may not bring an impartial mind to the question the [decision maker] is required to decide”.12

Actual bias is assessed by reference to conclusions that might reasonably be drawn from evidence about the actual views and behaviour of the decision maker and requires clear and direct evidence that the decision maker was in fact biased. It has been pointed out that in the absence of an admission of guilt or a clear and public statement of bias from the decision maker, actual bias will be difficult to establish. 13 Apprehended bias is assessed objectively by reference to conclusions that may reasonably be drawn about what an observer might conclude about the possible views and behaviour of the decision maker. In relation to apprehended bias, a Court may only need to be satisfied that a fair minded and informed observer might conclude that there was a real possibility that the decision maker was not impartial.14

The Decision of Justice Moynihan in Keating v Morris; Leck v Morris 15is instructive in terms of the authorities considered and the conclusions reached. In that case, his Honour was considering an application that a Commission of Inquiry was tainted by the apprehension of bias and made findings about the conduct of the Commissioner conducting the Inquiry. Those findings included that the Commissioner questioned witnesses rather than allowing Counsel Assisting to do so in accordance with the practice direction; the Commissioner’s questions were aggressive, sarcastic and belittling; and that the Commissioner’s harsh treatment of some witnesses was in stark contrast with his treatment of other witnesses.16 His Honour observed in relation to the questions asked by the Commissioner of certain witnesses that they were not: “fairly described as an exploratory or tentative statement of issues with a view to testing their correctness or to give the witnesses an opportunity to respond to a provisional view.”17 It was also found that the Commissioner interfered in the cross-examination in a hostile way and made accusations about the motives of those instructing counsel.18

On the basis of those matters, Justice Moynihan concluded in that case that:

“The circumstances established by the accumulated weight of evidence would rise, in the mind of a fair minded and informed member of the community, to a reasonable apprehension of lack of impartiality on the Commissioner’s part in dealing with the issues relating to each of the applicants.” 19

His Honour also noted that while many decisions involve allegations of bias against courts, the rules also apply to investigative bodies, but that the application of the rules to such bodies differs from their application to litigation. In this regard, Justice Moynihan noted that a judge makes a decision on the basis of the evidence which the parties to the litigation have thought to be in their best interests to adduce and has no right to travel outside that evidence in an independent search for the truth. 20 His Honour observed that the test for bias “…takes into account the personality and disposition of the investigator, some may be more robust than others.”21 His Honour also observed that the difference between an inquiry and a court does not “dilute or diminish the expectation that a fair and unprejudiced mind will be applied to the resolution of any question.”22

The Commission is not a court and neither is it an investigative body. However, the Commission is not bound to follow the rules of evidence and can inform itself in any way that it sees fit. The Commission also has broad powers to control its proceedings. The Commission is bound to deal with matters before it in accordance with equity, good conscience and the substantial merits of the case. The Objects of Part 3-2 of the Act state that the procedures and remedies relating to unfair dismissal are intended to ensure that a “fair go all round” is accorded to both the employer and the employee concerned. The Commission is also bound to afford parties natural justice.

The rule against bias has been called one of the twin pillars of natural justice.  23 The other pillar – the hearing rule – requires that: “a decision maker, at least one exercising a public power, must ordinarily afford a person whose interests may be adversely affected by a decision an opportunity to present material information and submissions relevant to such a decision before it is made”.24 However, as Justice Kirby observed in Allesch v Maunz:25

“…it is worth emphasising that the principle just described does not require that the decision maker actually hear (or receive the submissions of) the party potentially liable to be adversely affected. Sometimes through stubbornness, confusion, misunderstanding, fear or other emotions, a party may not take advantage of the opportunity to be heard, although such opportunity is provided. Affording the opportunity is all that the law and principle require.” 26

The Commission is increasingly required to deal with unrepresented parties – both employers and employees – who are very often extremely aggrieved and have a passionate belief in the righteousness of their position, notwithstanding the parameters of the legislative framework in which they seek to articulate their cases. The observation made by Justice Kirby set out above is apposite in the present case.’

[60] The decision was appealed, and the Full Bench affirmed the approach taken by the Deputy President and in particular, noted that:  27

‘…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 himself or herself 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.’

Consideration on apprehended bias

[61] The substantive matter I am required to determine, relevant to Mr Hunter’s s.365 application before the Commission, is whether the Commission is satisfied that all reasonable attempts to resolve the dispute have been, or are likely to be unsuccessful. If the attempts have been successful, the Commission would not issue a certificate

[62] In determining the application for apprehended bias or actual bias, in order for me to recuse myself, Mr Hunter would need to demonstrate that a fair minded and informed observer might conclude that there was a real possibility that I, as the decision maker, was not impartial.

[63] As summarised by Middleton J in Kirby v Centro Properties Limited (No 2): 28

‘[10] 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.’

[64] Having regard to the decision in Kirby, even though I would be arguably the best-placed Member to determine if a settlement had been reached because I was party to the negotiations between the applicant and the respondent, there should not be any default to me continuing to determine the application and the decision to issue a certificate or not because of efficiency.

[65] I confirm that reasons of efficiency have not had any bearing on my decision whether or not to recuse myself.

[66] As to Mr Hunter’s submissions as to why I should recuse myself, Mr Hunter repeatedly requested I do so on the basis that he considered that he was bullied by me during the telephone conference.

[67] During the hearing of this matter, I questioned Mr Hunter as to his understanding of why he advised he would attend on the Canberra Commission or Registry that very afternoon to sign the terms that were to be emailed to the parties. The following was said: 29

THE COMMISSIONER:  Mr Hunter, do you recall when I indicated that Mr Costello was agreeable to the nine days' payment plus superannuation that you indicated, and I indicated, that the Fair Work Commission's terms involving confidentiality and mutual non-disparagement, do you recall saying I will go into the Canberra office now and I will sign those terms this afternoon, do you recall saying that?

MR HUNTER:  I recall a conversation with you saying that I was unable to contact the Fair Work office because an order was in place; I couldn't contact the office or get in front of the staff.

THE COMMISSIONER:  All right.  I might hear from Mr Costello now as to - so your recollection of what you understood to be the purported settlement, and you can let me know for what part of the conversation you were on and what you understood, and your statement today is evidence - that is, Mr Hunter's statements.

MR HUNTER:  Yes, thank you.

THE COMMISSIONER:  So I'll hear from you now, Mr Costello.

MR COSTELLO:  I recall when we talked about the contracting component of it, you corrected me and you said if he's there as an employee I had to settle him, even though Geoff and I had a verbal agreement.  But anyway, I've gone ahead because you did correct me to tell me the information that I may have was incorrect, and obviously it was.  So that afternoon I paid his holiday pay up to date, and I did mention to you at the time, if it was okay I would pay his super in, because of the way they set up super these days, and we did, and which has been done now, and I do remember Geoff saying that he would go to - because he said he was in the ACT at the time - so to the office of the Fair Trading and do the documents.  That's what I recall.  And I mean, I have to strongly deny that there was bias towards me, because I didn't really picture much in the whole conversation with Geoff and Commissioner Hunt, and I was just sort of asked questions and then I replied.  So I find it bizarre that you're being confronted with bullying or anything like this, because the conversation was between Geoff and Commissioner Hunt for most of the time, and I disagree that I was corrected, you know - I was corrected with the super.  And even though when Geoff was terminated, I paid him his leave termination, I gave him an extra week just to help him on his way; I actually contacted Geoff to ask him did he want me to pay him one week at a time to help him so he didn't spend it, which he agreed to, so that's all.  I mean, my recollection is basically what Commissioner Hunt has mentioned.  Thank you.

THE COMMISSIONER:  Mr Costello, your evidence is that Mr Hunter has said that he would go to the Ombudsman itself or the Commission and sign the terms.  Do you recall any response from me to that?

MR COSTELLO:  Yes - no, well I thought Geoff was the one who brought it up, because he said he was in the ACT and he'd go straight there and get it signed.  That's how I recall it, and that's how it was.

THE COMMISSIONER:  Do you recall if I said anything in response to that?

MR COSTELLO:  No.

[68] Later, the following exchange occurred: 30

THE COMMISSIONER:  All right.  It is my recollection, Mr Hunter, of my response to you saying - because I was surprised that you were in the ACT; I had assumed that you were in Brisbane because I understood that you had lodged your application in Brisbane - my recollection of what I said to you is:  Mr Hunter, is there any restriction on you from attending the ACT registry; and you said no, there was not.

MR HUNTER:  That's exactly what you said after you spoke to - you left the room and you spoke to your assistant, and you came back into the room and said that restriction has been removed from you, and I wasn't aware of that and that's what I said to you.  You've been listening to Chinese whispers, and I asked you was there a file note in front of you stating this, and you said no, I was informed by my assistant before the meeting had started, which is my whole basis that there is bias here today.  I have tried to come to an amicable decision and a split with Anthony, and Anthony did not phone me and ask me if he could pay my super and pay my holiday pay in two lots.  I phoned the office and reminded the office that my holiday pay hadn't gone in and Anthony terminated me in a way I've never been terminated from any business in my life.  All my friends have told me, and the Fair Work office has told me, to go to the ATO and I have, that I will be straight after this meeting.  All that's been conducted today is a kangaroo court.  May I ask one question?  Do you have any information - I don't know the event numbers - do you have information in front of you about the F8 application?

[69] During the hearing Mr Hunter repeatedly sought to have the parties discuss the F8A form completed by ACA, to allow Mr Hunter to challenge the reasons for his dismissal. His submission was that I had refused to discuss that at the telephone conference, and it was something Mr Hunter still wished to pursue.

[70] Mr Hunter was asked to explain why it is he stated he had reached agreement with ACA and would be prepared to sign written terms that very same day. Mr Hunter did not provide any explanation as to why this did not constitute his full agreement to settle the two matters with the respondent.

[71] Further, in all of the communication sent from Mr Hunter to the Commission, and repeated during the hearing, Mr Hunter has stated that he refuses to open any email sent to him by Mr Costello.

[72] In determining whether I should recuse myself from making a decision to issue a certificate or not, I would need to be satisfied that a fair minded and informed observer might concede that there was a real possibility that I was not impartial.

[73] I do not consider that a fair minded and informed observer might conclude that there was a real possibility that I was not impartial. In reaching what I considered to be in-principle agreement during the telephone conference, the parties were provided with every opportunity to convince each other of their strengths of their respective cases.

[74] Mr Hunter submitted that he thought that I had bullied him. He did not make any such assertions at the time of the telephone conference, either in joint or private conference.

[75] Mr Costello’s evidence is that he considered that Mr Hunter had been given the ‘most’ opportunity to assert his case during the telephone conference and it was Mr Costello who was informed by me that in the event Mr Hunter was correct, he could be exposed to payment of unpaid annual leave and superannuation. It was Mr Costello’s decision to accept the advice provided by me and offer to Mr Hunter the full amount Mr Hunter appeared to be seeking, without any discount.

[76] Given Mr Hunter’s eagerness to resolve the applications and his preparedness to execute written terms the very same afternoon, and without Mr Hunter having made a complaint of apprehended bias or actual bias during the telephone conference, I conclude that Mr Hunter came to this conclusion in the days following the telephone conference. By this time, Mr Costello had paid to Mr Hunter the sum on monies relevant to the nine days’ annual leave (less taxation).

[77] The relevant test, however, is whether I can make an impartial decision relevant to what is to be decided in the case at hand, which is the question of whether to issue to the certificate or not.

[78] Mr Hunter has not made out any persuasive argument of apprehended or actual bias. It is evident that Mr Hunter feels some dissatisfaction with the Commission and with me, and he has made a complaint following the usual process. That is his prerogative.

[79] Mr Hunter’s dissatisfaction with the Commission and with me does not form a foundation upon which I should recuse myself and accordingly I decline to recuse myself from determining the matter.

Consideration on whether to issue a certificate

[80] In McCaffrey v Transdev Melbourne 31, Watson VP considered the question of whether the Commission had power to issue a certificate under s.368(3)(a) of the Act in circumstances where the parties had entered into a settlement arrangement. His Honour set out the approach to that question as follows:

‘[7] The basis of the issuing of a certificate arises under s.368(3)(a) of the Act. This section provides that:

“(3) If the FWC is satisfied that all reasonable attempts to resolve the dispute (other than by arbitration) have been, or are likely to be, unsuccessful, then:

(a) the FWC must issue a certificate to that effect; and

(b) if the FWC considers, taking into account all the materials before it, that arbitration under section 369, or a general protections court application, in relation to the dispute would not have a reasonable prospect of success, the FWC must advise the parties accordingly.”

[8] The issue of whether a settlement resolves a matter before the Commission has been considered by the Federal Court in relation to an unfair dismissal application. In Australian Postal Corporation v Gorman and Another, Besanko J of the Federal Court of Australia said that: 32

“[31] An accord and satisfaction extinguishes the existing cause of action and replaces it with a new cause of action based on the agreement. A valid accord and satisfaction is not a discretionary factor relevant to the subsequent litigation of the original claim; it is an answer to the claim.

...

[33] There is nothing in the Act which suggests that an accord and satisfaction should not be recognised. At a general level the object of Chapter 3 Part 3-2 and the general statements of the manner in which FWA is to perform its functions and the matters to which it is to have regard are consistent with the recognition of an accord and satisfaction. Furthermore, the words of subsection 587(1) are wide enough to include the recognition of an accord and satisfaction. As I have said, a valid and effective accord and satisfaction extinguishes the pre-existing cause of action and continued pursuit of an application based on such cause of action is clearly capable of being considered to be frivolous or vexatious or without reasonable prospects of success.”

…

[10] As this matter concerns an application under s.365 of the Act it is not possible to dismiss the matter on the grounds in ss. 587(1) (b) or (c). The critical question however is whether reasonable attempts to resolve the dispute have been successful. If this question is answered in the affirmative there is no basis to issue a certificate under s.368(3)(a).’

[81] The parties were invited to address the Commission on the decision in McCaffrey. Mr Hunter did not make any submissions, nor did he dispute that he agreed that he would attend the Canberra Commission offices that day to execute the settlement terms.

[82] As I understand Mr Hunter’s submissions, he claimed that he has not seen the settlement terms sent by my Chambers. I am instructed these were emailed to Mr Hunter and were made available, at his request, at the Canberra Registry. Mr Hunter has confirmed he has received some correspondence from the Commission by email and by post, but it appears he has stated that he has not seen the settlement terms prepared following the telephone conference.

[83] I understand Mr Hunter’s objection to the Commission determining that reasonable attempts to resolve the dispute have been successful is that he still wishes to agitate the reasons for the dismissal, which he claims relate to reporting unsafe work practices.

[84] A considerable amount of time was spent during the telephone conference on all of Mr Hunter’s concerns. I had available to me both of Mr Hunter’s applications. I consider that when Mr Hunter agreed to accept a sum of payment for nine days’ annual leave, together with superannuation for the entire period he worked at ACA, he was settling all of the matters between the parties.

[85] At no time did Mr Hunter seek to carve out of the settlement terms any part of his applications.

[86] Mr Hunter was not at any disadvantage during the telephone conference in that he was a self-represented applicant. Mr Costello, representing ACA was also unrepresented, and readily accepted the suggestion by me that Mr Hunter might be able to successfully demonstrate before a court that he should have been an employee for the entire period of the performance of the work, and not a contractor. Without hesitation, Mr Costello agreed to resolve the two applications.

[87] In Masters v Cameron 33the High Court held that when parties reach agreement on terms of a contractual nature and agree that the negotiations will be dealt with by a formal contract, that the case may belong to any of three categories:

(1) the parties have agreed on all terms and intend to be immediately bound to perform those terms “but at the same time propose to have the terms restated in a form which will be fuller or more precise but not different in effect”; or

(2) the parties have agreed on all terms and intend no departure from or addition to that which their agreed terms express or imply, “but nevertheless have made performance of one or more of the terms conditional upon the execution of a formal document”; or

(3) the parties do not intend “to make a concluded bargain at all, unless and until they execute a formal contract.” 

[88] In the first two categories above the High Court held there was a binding contract.

[89] I have also had regard to the Full Bench decision in Hewitt v Topero Nominees Pty Ltd T/A Michaels Camera Video Digital. 34 That decision involved a consideration as to whether the Commission could determine whether a dismissal had occurred, and accordingly, whether a certificate could be issued.

[90] It should be noted that at the time the decision in Hewitt was made, the relevant sections of the Act were as follows:

‘s369 Certificate if dispute not resolved

If the FWC is satisfied that all reasonable attempts to resolve the dispute have been, or are likely to be, unsuccessful, the FWC must issue a certificate to that effect.

s370 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.’

[91] The Act was amended by the making of the Fair Work Amendment Act 2013 (No. 73, 2013) so that the relevant section now reads:

‘s.368(3) If the FWC is satisfied that all reasonable attempts to resolve the dispute (other than by arbitration) have been, or are likely to be, unsuccessful, then:

(a) the FWC must issue a certificate to that effect; and

(b) if the FWC considers, taking into account all of the materials before it, that arbitration under section 369, or a general protections court application, in relation to the dispute would not have a reasonable prospect of success, the FWC must advise the parties accordingly.’

[92] The decision in Hewitt is clear that the Commission must not exercise arbitrary powers in determining whether there has been a dismissal, in order to hold a conference. In my view, the decision does not expressly contemplate the function of the Commission in determining how a Member can be informed as to whether resolution of the dispute is considered successful or unsuccessful.

[93] I am also mindful of the restriction at s.587(2) of the Act preventing the Commission from dismissing an application under s.365 on the grounds that the application is frivolous or vexatious, or has no reasonable prospect of success. Clearly, that is a job for the relevant court of competent jurisdiction to determine.

[94] The decision in McCaffrey appears to be on point, and I conclude that the Commission is tasked with determining if all reasonable attempts to resolve the dispute have been successful. As Watson VP concluded, if the decision of the Commission is that the dispute has been successfully resolved, a certificate would not be issued. I do not consider s.587(2) of the Act affects the consideration made by His Honour in McCaffrey.

[95] There are strong policy reasons to support this view. In the event parties do reach an accord to settle a dispute between them, and execute terms, and make payments to an application in accordance with those terms, it would be unjust to allow an applicant to inform the Commission that a certificate is required to further prosecute the application.

[96] While it could be said that a certificate may be issued by the Commission noting pursuant to s.368(3)(b) of the Act, the Commission considers the applicant would not have a reasonable prospect of success; it is still a deferral of what I consider to be the role of the Commission in its stated function and responsibility at s.368(3), that being the obligation to be satisfied that all reasonable attempts to resolve the dispute have been unsuccessful.

[97] There is clearly a job for the Commission to do in order to reach a point of satisfaction relevant to this matter. A certificate should not be issued simply because an applicant requests it, if the Commission is satisfied the dispute has been resolved.

[98] In the circumstances above in [95], where an applicant has received a monetary payment pursuant to executed terms, and is then issued a certificate by the Commission, why should the respondent be put to task defending a court application, and endeavouring to convince the court a settlement had been reached? This may come at considerable cost to a respondent who has already made payments to an applicant to resolve the dispute.

[99] In my view, the Act requires a careful consideration as to whether the dispute has been successfully resolved.

[100] If the parties inform the Commission the dispute is resolved, as is the case here, and payment is made pursuant to the terms agreed, it would be inviting potential anarchy to allow applicants to obtain the benefit of an agreed amount of money, and to then demand a certificate on the basis that the dispute has not been resolved.

[101] If I am incorrect on this point, what is to prevent an applicant seemingly resolve a dispute with a respondent, receive the benefit of the settlement, and then six months later declare an intention to prosecute an application in the court by seeking a certificate relevant to the s.365 application before the Commission?

Conclusion

[102] I have no doubt the parties reached accord and satisfaction to resolve the matters in the conference conducted by me. I am satisfied the agreement made falls within the umbrella of the first category described in Masters v Cameron. That Mr Hunter has not signed the terms of settlement and has repeated an indication not to sign them is irrelevant. He was immediately bound by the terms agreed at the conference before me and remains so.

[103] The accord between Mr Hunter and ACA extinguishes the original cause of action and replaces it with a new cause of action based on the agreement. With respect to the agreement, I consider ACA has complied with its obligations to pay to Mr Hunter nine days’ annual leave and superannuation for the relevant period.

[104] I am satisfied that the application made under s.365 of the Act was resolved by the settlement agreement made at the conference before me. ACA should not be put to the burden of further prosecution of this matter in circumstances where the parties have already agreed to resolve the application.

[105] Further, Mr Hunter should not be unjustly enriched by obtaining the financial benefit of the resolved dispute, to prosecute a court application claiming the dispute has not been resolved.

[106] I adopt the reasoning of Watson VP in McCaffrey and find that there is no basis to issue a certificate under s.368 of the Act and that it would be inappropriate to do so.

[107] I decline to issue a certificate for the reasons above.

COMMISSIONER

 1   Fair Work Act 2009 (Cth), s 370.

 2   Fair Work Act 2009 (Cth), s 369.

 3   C2017/3659.

 4   Superannuation Guarantee Ruling SGR 2005/1.

 5   PN82.

 6   PN139-PN140.

 7   [2015] FWC 5853.

 8   Ibid at [12]-[19].

 9 (2000) 205 CLR 337.

 10   Ibid at 348.

 11   Re Medicaments and Related Classes of Goods (No 2) [2000] EWCA Civ 350; [2001] 1 WLR 700 at [37] – [39].

 12   Ebner v Official Trustee in Bankruptcy (2001) 205 CLR 337 at 344.

 13   Groves M, The Rule Against Bias [2009] Monash University Law Research Series UMonashLRS 10, p. 4-5 citing Sun v Minister for Immigration and Ethic Affairs [1997] FCA 1488; (1997) 151 ALR 505 at 551-552.

 14   Ibid at p. 4-5.

 15 [2005] QSC 243.

 16   Ibid at [69] and [107].

 17 Ibid at [92].

 18 Ibid at [88].

 19 Ibid at [159].

 20   Ibid at [34] quoting Mahon v Air New Zealand [1984] 1 AC 808.

 21   Ibid at [44] citing Council of the Municipality of Burwood v Harvey (1995) LGERA 389, 395.

 22   Ibid at [46] citing Carruthers v Connolly [1998] 1 Qd R 339,371.

 23   Groves M, The Rule Against Bias, op cit at 1.

 24   Allesch v Maunz (2000) 203 CLR 172 at 184,per Kirby J.

 25   Ibid.

 26   Ibid at 185,citing Vestry of St James and St John, Clerkenwell v Feary (1890) 24 QBD 703 at 709 per Lord Coleridge CJ; Sydney Corporation v Harris (1912) 14 CLR 1 at 15.

 27   Loretta Woolston v The Uniting Church in Australia Property Trust (Q.) t/a Blue Care Bli Bli Aged Care Facility[2016] FWCFB 278 at [10].

 28 (2011) 202 FCR 439.

 29   PN156 – PN165.

 30   PN175-PN176.

 31   [2015] FWC 3400.

 32 (2011) 196 FCR 126.

 33   (1954) 91 CLR HCA 353.

 34   [2013] FWCFB 6231.

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