Mr John Bell v Meedac Incorporated
[2022] FWC 563
| [2022] FWC 563 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Mr John Bell
v
Meedac Incorporated
(U2021/10033)
| DEPUTY PRESIDENT BEAUMONT | PERTH, 15 MARCH 2022 |
Application for an unfair dismissal remedy – consideration of application for recusal on grounds of perceived apprehended bias – application dismissed.
Mr Bell (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 Meedac Incorporated (the Respondent) was harsh, unjust or unreasonable. The unfair dismissal application was listed for arbitration on 15 March 2022. However, on 14 March 2022, the Respondent filed a recusal application.
The recusal application arose in circumstances where the Respondent had requested an adjournment at approximately 16:52hrs on Friday, 11 March 2022, on the basis that its paid agent was ill. On Monday, 14 March 2022, that adjournment request was declined, but the parties were informed that the arbitration would take place by way of determinative conference instead of hearing, and as such guidance on procedure would be provided to both self-represented parties. At 13:15hrs on 14 March 2022, after the directions had issued, and at a time which was the day before the unfair dismissal hearing, the Respondent, though its HR Manager, Ms D’Elia Holdsworth, filed its recusal application with draft submissions.
Directions issued on 14 March 2022, for the parties to file their written submissions on the recusal application later that day. Parties were informed that the recusal application would be dealt with prior to the determinative conference on the morning of 15 March 2022.
On the morning of 15 March 2022, the Respondent again sought an adjournment at approximately 08:00hrs on the basis that a witness for the unfair dismissal determinative conference was now ill. The parties were directed that the adjournment request would be considered at the commencement of the determinative conference for the unfair dismissal application – if of course I had not recused myself at that point.
At approximately 09:02hrs on 15 March 2022, less than one hour before the hearing in respect of the recusal application, Ms D’Elia Holdsworth sent the following email:
Dear Associate
The reason for seeking the adjournment is that Ms Vanderwal is unwell and will not be at work this week and perhaps it could extend into next. She will provide a medical certificate upon seeing her doctor when she makes her appointment. We are unsure at this time if it is COVID related however we have already had within her team an outbreak and other members have been booking out this morning. I am unsure about their health status at this time. I spend much time with Ms Vanderwal and am not 100% myself and it is more than likely that I will have to go to home this morning. I will also provide a Certificate if I am forced to go home.More importantly Ms Vanderwal is a significant witness in this case as her evidence runs into my evidence. They go together. Without her evidence much of the Respondents evidence cannot be provided and corroborated.
A further email was sent by Chambers directing the parties to attend the Commission at 10:00hrs, as had been previously directed.
Ms D’Elia Holdsworth did not present for the recusal application hearing or to address the request for an adjournment. When contacted by Chambers on her mobile phone, it appeared that she had switched it off. When Chambers contacted the Respondent’s reception, Chambers was advised that Ms D’Elia Holdsworth had gone home. Chambers thereafter contacted the Respondent again to seek the attendance of a representative of the company for the scheduled recusal hearing. Ms Ripper, the Respondent’s Operations Manager, presented for the hearing.
Section 589(1) of the Act confers a discretion on the Commission to adjourn a proceeding. However, it is not an unfettered discretion, as was stated by Deputy President Gostencnik in Esso Australia Pty Ltd (Esso).[1] The Deputy President observed that the discretion is not at large. It is to be exercised in a statutory context. The Commission is required to perform its functions and exercise its powers in a manner that is fair and just, quick, informal and avoids unnecessary technicalities, and is open and transparent. In performing its functions and in exercising its powers in relation to a matter, the Commission must take into account the relevant objects of the Act, any objects of a relevant part of the Act, and equity, good conscience and the merits of the matter. The Commission is also required to act judicially.
Having agreed with the statement of the Deputy President in Esso and applied it in the circumstances of this case, I dismissed the request for an adjournment concerning the Respondent’s recusal application. I note, no direct evidence was submitted to support the request for an adjournment. Further, the request came at a time whereby the Respondent had: (a) sought an adjournment on Friday 11 March 2022, on the basis that its paid agent was sick, notwithstanding that permission had not yet been granted for the paid agent to represent the Respondent for the purpose of the unfair dismissal hearing – that adjournment was declined; (b) sought to have me recuse myself from hearing the unfair dismissal application following my having declined the adjournment request of 11 March 2022; (c) sought an adjournment earlier this morning on 15 March 2022, due to the purported illness of a witness in the unfair dismissal application; and (d) sought an adjournment on the basis that Ms D’Elia Holdsworth, the HR Manager of the Respondent, was not ‘100%’ herself.
As the Respondent had not submitted evidence in support of its recusal application, but had filed detailed submissions, I considered that it would not be prejudiced by the refusal of the adjournment. The request for the adjournment in respect of the recusal application had been made very late in the course of proceedings in circumstances where the evidence of the unwell Administration Officer, Ms Jodie Vanderwal, played no part in the application to recuse me. Furthermore, in light of the detailed submissions filed by the Respondent and Ms D’Elia Holdsworth’s apparent late withdrawal from the case, an adjournment was simply unwarranted.
Parties were invited to address the recusal application and Ms Ripper, who appeared unfamiliar with the case was informed that the Respondent had filed detailed written submissions. After hearing from the parties and considering the submissions of both, I ordered that the Respondent’s recusal application was dismissed and advised that the parties would receive my written reasons for such decision later in the day of 15 March 2022, if not the following day.
This decision attends to the Respondent’s recusal application and sets out my reasons for its dismissal.
Background
From a procedural perspective, the Commission has accommodated various delays in respect of the filing of materials and attendance at arbitration.
On 18 January 2022, the Applicant applied for an extension in which to submit his materials from 19 January 2022 to 24 January 2022. That extension was granted given it would not impact upon the hearing date, and the Respondent was similarly provided with an extension in which to file materials, from 26 January 2022 to 4 February 2022.
On 1 February 2022, the Applicant informed the Commission that there was to be a power outage at the General Practice at Mullewa where he, and his witnesses, would be participating in the hearing through MS Teams. It should be noted that the Applicant is based in rural Western Australia. The Respondent neither agreed nor disagreed to the request when provided with an opportunity to respond, and hence the proceedings were adjourned in the circumstances from 9 and 10 February to 15 and 16 March 2022.
On 4 February 2022, the Respondent requested an extension in which to file materials due to its paid agent, a Mr King, being ill. That extension was accommodated, and the Respondent was provided until 18 February 2022 in which to file materials. Similarly, the Applicant was granted an extension in which to file submissions in reply from 8 February 2022 to 25 February 2022.
On 18 February 2022, the Respondent requested an extension until 22 February 2022, to file the witness statement of Ms Rosella D’Elia Holdsworth, Human Resources Manager of the Respondent. While not formally granted, Mr King submitted that same witness statement on the 22 February 2022, and it was accepted.
On 24 February 2022, the Applicant requested an extension in which to file his submissions in reply from 25 February 2022 to 28 February 2022. As this would not impact upon the new hearing dates, the request was accommodated.
Insofar as the conduct of the matter has been concerned, it can be observed that for the most part, all requests from the parties were accommodated.
On 3 March 2022, the Respondent emailed Chambers outlining several concerns about the materials filed by the Applicant in reply. In short, the Respondent observed that the Applicant had filed a plethora of documents and handwritten notes. The Respondent continued:
Chambers on the 21 January 2022 wrote to the parties with the following request "In the future, Chambers asks all parties to ensure submissions sent to Chambers are appropriately named to minimise inconvenience to all parties"
The Respondent contends that the Applicant has not adhered to the request from Chambers and as a direct result of this the Respondent is suffering a significant inconvenience. which is delaying its preparation for hearing which could realistically hamper the presentation of its case at hearing
The Respondent contends that having to shift through all material filed by the Applicant and trying to establish what the Applicants is actually submitting is costing the Respondent time and money
The Respondent understands that there [sic] certain sections of the Fair Work Act 2009 that would allow the Deputy President to address the matter raised by the Respondent and to make Orders if necessary
The Respondent contends that the Applicant should file better submissions, statements and other materials that are in the correct format which can be readily identified and understood and relate to the unfair dismissal matter.
If required the Respondent can make further detailed submissions in regard the concerns it holds about the statements documents and materials filed by the Applicant
On 8 March 2022, Chambers issued the following direction to the parties:
Dear Parties
Chambers refers to the attached email from Mr King requesting that the Applicant file better submissions.
This request has been put before the Deputy President, who has determined that no further directions will issue.
The Respondent is to prepare its case in light of the materials filed. If it is unable to make sense from [sic] the materials filed then it may broach such an issue in its submissions.
Kind regards
On 11 March 2022 at 16:52hrs, Ms Holdsworth emailed the following to the Commission:
Dear Associate
Our representative Mr Paul King became unwell last night.
Mr King’s doctor has certified him as totally unfit for work from the 11 March 2022 to the 25 March 2022 inclusive.
For privacy reasons I will attach the medical certificate in a separate email to Chambers.
The Respondent would seek that the hearing dates for the 15 and 16 of March 2022 be vacated and relisted sometime in the near future when Mr King is well.
The Respondent submits that it is in no position whatsoever to be able to represent itself at this stage.
The Respondent contends that it would not be fair or equitable if the hearing were to go ahead without our representative as it would place the Respondent in a position where it could not adequately defend itself against the claim.
It would cause the Respondent a serious detriment.
Yours sincerelyRose Holdsworth
On 12 March 2022, at 16:30hrs, the Applicant emailed a missive to Chambers, which included, in respect of the hearing on 15 and 16 March 2022, the following:
I have made a lot of arrangements - witnesses & support people -
some have already traveled 600k. The Doctor in Mullewa has adjusted her
schedule to accommodate me and Chris Barry has arranged time off work.
On 13 March 2022, at 19:34hrs, the Respondent emailed to Chambers a response to the Applicant’s email dated 12 March 2022. Ms Holdsworth, who had emailed the response on behalf of the Respondent, noted that she had sought counsel from Mr King. Ms Holdsworth detailed that Mr King was ill but nevertheless assisted.
On 14 March 2022, at 08:01hrs, the Respondent emailed Chambers the following:
Dear Associate
It would be appreciated if you could convey the following information to Deputy President Beaumont as I forgot to include it in the document I emailed to Chambers in reply to the Applicants email 13 March 2022.
When I spoke with Mr King I asked him if he would be recovered enough in 2 weeks’ time to be able to represent Meedac Incorporated at hearing or would we need to find someone else who could represent us.
Mr King assured me that he would be fine and well enough in 2 weeks’ time to be able to efficiently and effectively represent Meedac. He advised that his doctors had commenced him on new medication and that coupled with the medication he was already taking would greatly assist him and the exacerbation of his illness appears to be from a respiratory infection he contracted.
Mr King assured Meedac that if he felt that he could not represent us effectively and efficiently at a 2 day hearing he would have said that.
I was to have travelled to Perth to be with Mr King for the 2 day hearing. That was at the request of Mr King so that I could provide him with the Respondents instruction without interrupting the hearing because if I remained in Geraldton it would be difficult to instruct via video link up. Mr King cannot travel to Geraldton as it is too far to drive and he is not allowed to fly.
I have had to postpone that trip until the new hearing dates are known.
Regarding the Applicant stating that he is on the pension even in his documents filed he has stated that he was going to retire on the 12 March 2022 (which the Respondent denies and states he was retiring in December 2021)
When I spoke with Mr King he advised that I should make the Commission and the Deputy President aware that Meedac has not been satisfied with some aspects of this case. There is an alleged apprehension of bias against the Deputy President. On the 8 March 2022 the Respondent had a lengthy discussion with Mr King about the apprehension of bias and as a result management instructed Mr King to commence preparing a document requesting that the Deputy President does recuse herself from the matter and have no further part in it.
Mr King had commenced work on that document however it is only in the draft stage and Meedac cannot file it as it is a draft and Mr King is not well enough to be able to discuss parts of that document and amend it if he is required to. I, nor any other person at Meedac can prepare such a document. I have trouble in understanding some aspects of it
That document will be filed when Mr Kings position improves and the draft is a final copy
(italics my emphasis).
Chambers sent an email to the parties at 09:20hrs, on 14 March 2022:
Dear Parties
Chambers refers to the correspondence passing between the parties on the weekend, and of course to the request for an adjournment by the Respondent.
The Deputy President notes the following regarding this matter:
1st extension – Applicant extension to submit materials
-Applicant request for extension to file materials – From Wednesday 19 January 2022 to Monday 24 January 2022.
-Respondent provided similar extension for materials – From Wednesday 26 January 2022 to Friday 4 February 2022.
2nd extension – Applicant Mullewa GP power outage
-Respondent neither agreed nor disagreed to the request when provided with an opportunity to respond.
-Hearing adjourned from 9 and 10 February to 15 and 16 March 2022.
3rd extension – Respondent request for extension to file materials (Mr King sick)
-Extension granted for respondent to provide materials from Friday 4 February 2022 to Friday 18 February 2022.
-Applicant granted extension to file subs in reply from Tuesday 8 February 2022 to Friday 25 February 2022.
4th extension – Respondent request for extension to file materials (witness statement)
-Respondent requested an extension to file Ms Rosella D’Elia Holdsworth’s statement
oThe extension was not formally granted, but Mr King submitted it on the 22 February 2022 and it was accepted.
5th extension – Applicant request for extension to file submissions in reply
-Extension granted from Friday 25 February 2022 at Monday 28 February 2022.
It is noted that this matter has been subject to multiple delays in respect of the directions and hearing date.
For the most part, all requests from the parties have been accommodated.
However, under s 577 of the Act the Commission is charged with performing its functions in a fair and just manner, and also in a manner that is quick, informal and avoids unnecessary technicalities.
While the Deputy President appreciates that the Respondent’s representative has been taken ill, it is not the case that representation by a paid agent or legal representative is an automatic right under the Act. Parties are required to seek permission to be represented under s 596(2) of the Act. Further, the Respondent has internal human resource resources that would allow it to present its case.
As it stands the Deputy President holds the view that it is appropriate to proceed to arbitration tomorrow and therefore the adjournment is not granted. However, the arbitration will be held by way of determinative conference rather than hearing. This means that the Deputy President will proffer guidance and assistance to the parties regarding procedure. The proceedings will of course be recorded, and witnesses are still required to give their evidence. It is important to note that witness statements will stand as the evidence in chief of the witnesses.
The Deputy President is only able to make a decision based on the evidence before her. Therefore, it is important that both parties attend the determinative conference. The listings dates stand. A Notice of Listing will be issued shortly reflecting that the matter will proceed to arbitration by way of determinative conference rather than hearing.
Please note that Chambers will not be calling either party unless it considers it necessary.
Kind regards
At 13:15hrs on 14 March 2022, the Respondent sent an email to Chambers attaching a letter, whereby an order was sought that I recuse myself from having any further involvement in the matter including the determinative conference (arbitration) listed for 15 and 16 March 2022 (the next day). The email dated 14 March 2022 contended:
The Respondent contends that the Deputy President does not have an impartial mind for the resolution of the question that the Deputy President is required to decide upon (Unfair Dismissal).
In light of that information contained in this letter regarding an adjournment, the Respondent would seek an order that the hearing or determinative conference be adjourned for a period of two weeks.
The letter from the Respondent set out that there were two issues that required addressing. These issues were:
a) The failure of the Deputy President to adjourn the Hearing for a period of two (2) weeks so that the Respondent receives a fair trail be being effectively represented by Mr King.
b) That the Deputy President does recuse herself immediately from this matter based upon an apprehension of bias and the fact that she does not come with an impartial and unprejudiced mind set.
Following the email from the Respondent at 13:15hrs on 14 March 2022, directions were issued for the parties to file submissions regarding that the Respondent’s application, and the parties were informed that I would hear from them concerning the recusal application at the commencement of the proceedings on 15 May 2022.
Consideration
For the sake of fulsomeness, set out below is my consideration of the two issues.
Failure to grant an adjournment as requested on 11 March 2022
The letter from the Ms Holdsworth at first addressed the reasons why the Respondent could not proceed to a hearing absent representation by paid agent, Mr King. Such reasons included Ms Holdsworth’s lack of knowledge regarding the Act and an understanding of an unfair dismissal application, her stress and anxiety which could induce a panic attack, the disparaging remarks made by Mr Bell which could impact her mental health and her categorical belief of ‘[T]here is no way that I can do tomorrow what the Deputy President assumes I can do.’
The Respondent thereafter detailed in the letter of 13 March 2022, the reasons as to why it was evident that Mr King was acting for the Respondent prior to the application being listed for hearing. The Respondent further cited that permission had been granted for the Respondent to be represented by Mr King at the member assisted conciliation conference.
The application for adjournment is to be decided in the context of the Act. Accordingly, s 577 is relevant in this respect as is s 589. Furthermore, there is a statutory presumption that termination of employment matters should be resolved as quickly as practicable. It follows that an application for adjournment must be properly made out.[2] The task involves the balancing of justice between the parties taking account of all relevant factors.
As was observed for the benefit of the parties, the unfair dismissal application has been subject to various delays – arising from the conduct of both Applicant and Respondent. The requests of both, to date, have been accommodated. The parties have had ample opportunity to prepare their cases. Furthermore, whilst the Respondent proceeds on the basis that legal representation is to be granted, such permission has not yet been granted – with that issue to have been determined on the first morning of the arbitration. No party agitated otherwise for a decision in this respect.
The Applicant is a self-represented litigant, and the Respondent party has internal human resources capability. Both are positioned with an appreciation of their cases and the factual matrix to be presented. The Applicant is in a remote part of Western Australia, and he has informed the Commission that he is accessing the facilities of a third party in an attempt to access justice.
Considering all of the abovementioned factors and in the balance of justice between the parties, the circumstances led to a conclusion that an adjournment as requested on 11 March 2022 was unwarranted.
Recusal application
It is well established that a Commission member should not hear a case if there is a
reasonable apprehension that they are biased.[3] 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.[4]
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.[5] This means that members should not accept the suggestion of apprehended bias too readily,[6] 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 Bli Aged Care Facility,[7] 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.
It appears from the Respondent’s submissions that the assertion levelled is one of apprehended bias based on the considerations of responses to requests made and my conduct at a conciliation conference.
At this point, it is important to broach that there is no requirement for a decision-maker to refer to every piece of evidence and every submission in a decision, provided that the decision-maker deals with those matters which are centrally relevant and sets out the reasoning which leads to the outcome which is determined.[8] It follows that I have attended to each of the centrally relevant assertions in further detail. However, before I do, I note that in deciding whether a Commission member should be disqualified for the appearance of bias, the Commission is required to consider whether a reasonable and fair-minded person might anticipate that the Commission member might approach the matter with a partial or prejudiced mind.[9]
Email dated 3 March 2022
In addressing its application to have me immediately recused from dealing with the matter further, the Respondent raised my failure to address Mr King’s email of 3 March 2021 (presumedly 2022).
The Respondent submitted that on 3 March 2022, Mr King sent an email to Chambers regarding documents, witness statements and other material the Applicant had filed in the Commission. The Respondent pressed that he had sought further and better particulars be filed by the Applicant,that the documents filed be marked and numbered etc and that the documents that were not relevant to the matter should be disregarded.
According to the Respondent:
… a Fair Minded Lay Observer would raise an Apprehension of Bias especially given that your decision occasioned the Respondent a significant detriment with Mr King having to sort through Mr Bell’s documents when a Directions Order could have easily addressed this and directed the Applicant to provide better particulars, rule out the unnecessary document relating to his alleged TOIL etc etc. You have even failed to follow one of your own Directions. On the 21st January 2022, Chambers wrote to the Parties with the following request, `in the future Chambers asks all Parties to ensure that submissions sent to Chambers are appropriately named to minimise inconvenience to all Parties’. Yet, you have allowed Mr Bell to ignore this request and refused the Respondents request that they are appropriately named.
The Respondent submitted that to a lay minded fair observer this may been seen as me showing bias towards the Applicant for allowing him to file materials that had not been labelled as directed.
The email from the Respondent was received on 3 March 2022. By this time the Applicant had filed his materials on 24 January 2022 and the Respondent had filed, for the most part, its responsive materials on 18 February 2022. However, the Respondent had not sought further and better particulars to be filed on receipt of the Applicant’s initial submissions and evidence.
The materials filed in reply by the Applicant, were filed in or around 28 February 2022. There were no directions for the Respondent to file materials in response to those reply materials.
On any objective level it was therefore not unreasonable to direct the Respondent to address the issues it had taken with the Applicant’s materials in its submissions at hearing. By way of example only, this may have been addressed in submissions by challenging the admission of certain evidence, making submissions as to the weight to be afforded to certain evidence or otherwise making submissions that the cause of action or submission of the Applicant was either not discernible or was irrelevant to an application for unfair dismissal.
It is established that a party applying for a decision maker to recuse themselves must be
able to identify a ‘logical connection’ between the alleged apprehension of bias and the impartiality.[10] In the present matter, a reasonable observer would not have drawn a ‘logical connection’ that my failure to direct the Applicant to provide further and better particulars or label his documents would give rise to a reasonable apprehension of bias. This is particularly the case when the Respondent was provided with guidance as to how it may approach its concern by way of making submissions.
TOIL claim
The Respondent contends that the Applicant is aware that he had raised his claim for ‘TOIL’ in his unfair dismissal application given that he filed in his material a note to me that read:
I propose to exercise a workplace right in querying about my toil and my entitlements. I understand that the unfair dismissal and payment of entitlements are two separate matters. I know they are linked.
The Respondent contends that I have allowed the Applicant to file documents unrelated to his unfair dismissal claim which is occasioning the Respondent a detriment in that it is causing it to incur costs from its representative when it should not, and but for my failure in addressing Mr King’s emailed concerns, it would not incur such costs.
According to the Respondent this raises an apprehension of bias that I am having a total disregard to the procedural fairness aspects of the matter.
The Commission issues directions to the parties to file their materials in support of their application or in response to the unfair dismissal application. In doing so guidance is provided to the parties regarding unfair dismissal applications, such as the forms or templates to use and where resources may be accessed to assist the parties in the preparation of their cases. Chambers also informs the parties that this Commission cannot deal with claims for underpayment.
It is however not an infrequent occurrence that parties are unrepresented. It follows that at times parties may file documents that are perceived by the other party to be irrelevant to the matters in dispute. There remains an avenue for the parties to address these concerns. That avenue is to object to the admission of the offending direct or indirect evidence at the hearing or to file such objections prior to the hearing to enable them to be dealt with as the presiding member deems appropriate. That recourse was not removed from the Respondent at any time.
To assert that I am demonstrating a total disregard to the procedural fairness aspects of the matter based upon the abovementioned ground is misconceived. Therefore, the assertion of an apprehension of bias cannot be sustained given the matter raised is of dubious relevance.
Previous adjournment
The Respondent further contended that I failed to exercise discretion under the Act to make enquiries of the Applicant as to whether there were other venues he could utilise to attend the MS Teams Hearing in circumstances of a purported power outage in Mullewa (the reason why the first adjournment request was acceded to).
The Respondent further submitted that I had gone to great lengths not to adjourn the matter on more serious grounds that had been backed up with evidence. On this basis the Respondent contended there was a perceived inference of bias on my part towards the Applicant to the detriment of the Respondent.
The Respondent submitted that a power outage was not a reason for a delay according to the Fair Work information supplied on the Commission’s website for reasons that a party may adjourn a matter.
The Respondent argued that to a fair-minded lay observer this would raise an apprehension of bias in that I was favouring the Applicant by deciding to adjourn the hearing on the request of the Applicant, but I had refused to adjourn the hearing when, on the 14 March 2022, the Respondent sought such an order.
There are points to attend to in response to this ground of recusal.
The circumstances of the Applicant’s request for an adjournment were markedly different to those of the Respondent. When the Applicant made the request, it was some time prior to the listed hearing date.
The Applicant made his request for an adjournment in circumstances where he reported that there was to be a power blackout of the venue in which he would be attending the hearing. The hearing was to be conducted by MS Teams because both the Applicant and Respondent are not situated in Perth. As it is, the Applicant resides remotely in rural Western Australia and had reported limited access to IT facilities. It followed that the Applicant had arranged for both him and his witnesses to join the hearing via MS Teams through the general practice at Mullewa.
When the Applicant made such request, the Respondent was provided with the opportunity to respond to it. The Respondent did not consent or object to the request made.
Thereafter, the Respondent sought an extension of time in which to file its materials in support of its response to the unfair dismissal application. It asked that it be provided until 18 February 2022 to file such materials. It may be recalled that the hearing had been initially set down for 9 and 10 February 2022 and was rescheduled to 15 and 16 March 2022. It was therefore the case that rather than being disadvantaged by the adjournment, the Respondent was permitted further time in which to file its materials because of the change in hearing dates.
The Respondent has sought an adjournment on short notice in circumstances where its paid agent has taken ill. It is not the first time that the paid agent has taken ill during these proceedings. The last episode of illness necessitated the grant of an extension of time in which to file materials.
The parties have been aware that the matter was proceeding to arbitration on 15 and 16 March 2022 for some time. As observed, permission has not yet been granted to the Respondent to be represented for the purpose of the arbitration and it would be presumptive of the Respondent to conduct itself on the basis that such permission would be forth coming. The Applicant proceeds to the arbitration as a self-represented applicant. While the Respondent speaks of permission being granted to the Respondent to be represented previously, the context differed. It does not follow that the grant of permission in one circumstance will flow to every circumstance or proceeding which follows.
In Galloway v Zhai, it was held that decisions on adjournments are within the discretion of the Commission member, and that members have some latitude as to the decision to be made.[11]
Insofar as the Respondent’s recusal application alleged an apprehension of bias based on past procedural rulings made against it, it is well-established that this will not by itself give rise to an apprehension that the decision-maker will approach the final determination of the matter other than with an impartial and unprejudiced mind.[12] It follows that the Respondent has failed to make out this ground.
Conduct at the conciliation conference
The Respondent further cites an example of perceived bias occurring at the member assisted conciliation conference on 3 February 2022.
On the 3 February 2022, the parties attend a member assisted conciliation conference over which I presided.
The Respondent submitted that at that conference, prior to splitting the parties for private conversation, I provided a breakdown on how the Commission deals with compensation when considering an unfair dismissal matter. It was the Respondent’s recollection that I said that in accordance with the relevant section of the Act, if a person failed to mitigate their losses (by seeking future employment) they can have their compensation rate reduced and, in some cases, even if the dismissal is found to be `harsh, unjust and unreasonable’ the Applicant receives no compensation because they failed to mitigate their losses. According to the Respondent, I then split the conference and spoke with the Applicant first.
The Respondent submits that when I spoke with the Respondent in private, I advised that the Applicant had made had two offers of settlement. The first was a global amount which included his alleged non-payment of TOIL etc. The Respondent presses that TOIL is not a consideration in an unfair dismissal application, and therefore this left the Respondent wondering how I came to discuss this with the Applicant when it was not raised or discussed in the conciliation conference itself. The Respondent advised that it did not accept the ‘global ‘offer’.
The Respondent observed that the second offer for settlement for the unfair dismissal application was purportedly $13,749.90. The Respondent submits that Mr King asked how the Applicant had derived such a figure and what the Applicant’s offer consisted of. The Respondent submits that I stated, I ‘did not know how he got it’, nor that I had ‘any idea of what the settlement was comprised of’. Mr King said that the Respondent was making a counteroffer of four weeks which amounted to $4, 230.77.
According to the Respondent, Mr King then attempted to explain to me how the Respondent had arrived at that figure. The Respondent points out that Mr King had only spoken several words when the Deputy President cut him off saying `that’s not going to cut it. I’m not taking that offer back to him and in fact, I am ending this conference as of now’.
The Respondent thereafter states that I informed the parties that they should continue to negotiate between themselves and that when a party requests a conciliation conference, they should be prepared to attempt to settle the matter. The Respondent submits that the inference that arose from my communication was that the conference was a waste of time to the Commission and that a members’ time is valuable and should not be wasted. The Respondent submits that the remark was directed to the Respondent.
The Respondent contends that a member’s role as a conciliator is to act as an independent third party who ensures each side has their say, helps develop possible solutions based on the views of the parties and the material presented and assists in developing an agreed settlement. That member should bring an impartial mind set with them to the conference. That member does not take sides but works to bring the parties to an agreed resolution. The Respondent’s contention aligns with introductory remarks made at the conference.
The Respondent contends that the way I presented the Applicant’s offers and ended the conference abruptly, appeared that I was representing the Applicant not acting as an impartial third party in the matter.
The Respondent submitted that a fair-minded lay observer might reasonably apprehend that I did not bring an impartial and unprejudiced mind to the conference.
The Respondent argues that it had no way of knowing what Mr Bell’s counter response may have been to its initial offer which took into account matters that were discussed by me prior to the splitting of the conference in which I discussed: failure to mitigate his loss and the fact that had his employment not been terminated he would have retired in December 2021, which the Respondent said, was supported by their evidence. The Respondent added that it also took into account the fact that he had been paid up to the 19 November 2021 and that he would only have received another four weeks further earnings prior to retirement
For the sake of clarity, the Applicant entered the conciliation conference in pursuit of compensation for his unfair dismissal and his claim for underpayment. This is notwithstanding being informed on several occasions in plain English that the Commission is not a Court, and the unfair dismissal jurisdiction is not one that can address a claim for underpayment. Having been informed of this point again, the Applicant remained unwilling to surrender his pursuit of an alleged underpayment. However, he was agreeable to put forward an offer to the Respondent that constituted two offers.
One offer would address his purported underpayment claim and unfair dismissal applicaiton and the other, only his unfair dismissal claim. The Applicant made it resoundingly clear that he was unwilling to move from those two offers put, and that those offers constituted a compromise on his behalf to settle the matter. Whilst guidance was again provided to the Applicant as to how the Commission evaluates compensation in circumstances where an unfair dismissal application is upheld and compensation is considered appropriate, the Applicant’s rationale for each quantum proposed, lacked discernible reasoning in my view.
The offers were conveyed to the Respondent. Prior to doing so, the Respondent was informed that the Applicant was fixed in his position, that the Applicant’s reasoning as to how he arrived at the amounts proposed was unclear but nevertheless he was agreeable to put forward a ‘global offer’ and one that dealt only with the application on foot in the Commission. The counteroffer proposed by the Respondent was countered with a release that would extend to the purported underpayment. It was explained to the Respondent that the Applicant had made it clear that his position was fixed and therefore in such circumstances the counteroffer would not resolve matter. It was also explained to the Respondent that it had been very difficult to extract from the Applicant any form of offer. The Respondent was informed that its counteroffer would be of little utility given the fixed position of the Applicant and therefore it was best to adjourn the conciliation conference.
It has been established before the Commission that it is entirely consistent with the principles of procedural fairness to alert a party to the perceived deficiencies in their claim, as
long as the views expressed are tentative.[13] However, whilst I traversed the approach of the Commission to unfair dismissal applications in light of s 387, and each criterion was considered and explained to both, it was difficult to traverse with the Applicant the deficiencies arising in his case. This was because the Applicant was extraordinarily aggrieved by what he considered to be unfair treatment by the Respondent in his employment and he had difficulty moving past that to appreciate the strengths or weaknesses of his case.
An abrupt ending of a conference may not necessarily indicate a level of frustration or demonstrate a view on the arbitration. It may simply reflect that the conference has been terminated because it is of no utility. A conference in those circumstances utilises the time of its participants to no avail, whilst increasing the fees of a paid agent due to the unnecessary and futile prolongation of the event. The Respondent was not denied an opportunity to continue its negotiations with the Applicant to attempt to settle the matter. It was armed with a paid agent who to that end could have easily engaged in that process. In fact, the parties were encouraged to keep lines of dialogue open and to continue to negotiation the claims that they considered existed between them.
The ground relied upon by the Respondent does not support a conclusion that a fair-minded lay observer might reasonably apprehend that I would not bring an impartial mind to the resolution of the merits of this matter due to my conduct at the conciliation conference. No perceived pre-judgment can be drawn from the conciliation conference.
Remaining issue
It is observed that the Respondent took issue about my failure to address purported disparaging comments directed to the Respondent and its witnesses by the Applicant, and that my failure to address it with the Applicant constitutes my condoning the Applicant’s conduct such that it raises an apprehension of bias. On this point, I note that the Act permits redress in certain circumstances, for example intimidation (see s 676 of the Act).[14] However, the unfair dismissal jurisdiction does not extend to the Commission censuring parties and directing them as to what they may, or may not, say. It follows that the ground is not made out.
The Respondent has also agitated that my dealing with the recusal application in the timeframe so provided further gives rise to an apprehension of bias. The proposition is unable to be sustained. The Respondent submitted its recusal application in circumstances of less than a day prior to the arbitration of the matter. It did so within the context of its adjournment application having been declined on that same day. For the most part the events it relies upon to support its recusal application occurred sometime prior to its application with the exception of my failure to grant the adjournment request and my programming of this application.
The programming of the recusal application reflects the circumstances the Commission was placed in by the Respondent’s own actions. As such, I do not consider that a fair-minded lay observer might reasonably apprehend that I would not bring an impartial mind to the resolution of the merits of this matter.
Conclusion
For the reasons outlined, the Respondent’s application that I recuse myself is dismissed. An Order[15] issues concurrently with this decision.
DEPUTY PRESIDENT
Appearances:
Mr J. Bell for himself;
Ms M. Ripper for the Respondent.
Hearing details:
Perth (Microsoft Teams video link)
15 March 2022.
[1] [2018] FWC 6244 [10]-[11].
[2] Sanford v Austin Clothing Company Pty Ltd trading as Gaz Man PR S8287 [26].
[3] R v Watson; Ex parte Armstrong (1976) 9 ALR 551, 561‒565, cited in Livesey v New South Wales Bar Association
(1983) 151 CLR 288, 293‒294.
[4] Dain v Bradley & Grant [2012] FWA 9029 [14]; citing British American Tobacco Australia Services Limited v
Laurie (2011) 242 CLR 238, [104].
[5] Re J.R.L. Ex parte C.J.L. (1986) 161 CLR 342, 352.
[6] Ibid.
[7] [2016] FWCFB 278 [10], citing Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 357, [74].
[8] Ross Kennedy v Qantas Ground Services Pty Ltd[2020] FWCFB 394 [23].
[9] Johnson v Johnson (2000) 201 CLR 488, [11].
[10] Ms Nicola Robyn Miles v Services Australia[2021] FWC 4906 [86], citing Young v Judge Nixon [2008] VSCA 5; Ebner v
Official Trustee in Bankruptcy (2000) 205 CLR 337; AJH Layers v Careri (2011) 34 VR 236, [22].
[11] [2021] FWCFB 5419 [29].
[12] Re J.R.L.; Ex parte C.J.L.(1986) 161 CLR 342, 352.
[13] Aaron Cullen v AEG Ogden (Convex) Pty Ltd T/A Brisbane Convention & Exhibition Centre [2019] FWC 6986 [30].
[14] Fair Work Act (Cth) ss 674(1)-(2) (‘The Act’).
[15] PR739323.
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