Mr Jonathan Dugald Mitchell v University of Tasmania
[2022] FWC 3164
•30 NOVEMBER 2022
| [2022] FWC 3164 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.739 - Application to deal with a dispute
Mr Jonathan Dugald Mitchell
v
University of Tasmania
(C2022/1761)
| COMMISSIONER LEE | MELBOURNE, 30 NOVEMBER 2022 |
Alleged dispute about any matters arising under the enterprise agreement and the NES; [s186(6)]
On 15 March 2022 Mr Jonathan Dugald Mitchell (the Applicant) made an application to the Fair Work Commission pursuant to s.739 of the Fair Work Act 2009 (the Act), for the Commission to deal with a dispute. The Applicant was, at the time the dispute was lodged an employee of the University of Tasmania (the University). The dispute relates to the operation of the consultation provisions of the University of Tasmania Staff Agreement 2017 – 2021 (Agreement) and whether these provisions were complied with when the University introduced a policy requiring employees who come onto campus from 15 January 2022 to be fully vaccinated.
There were a number of conferences convened to try to resolve the matter without success. The matter then proceeded to arbitration to deal with the jurisdictional objections. I issued a decision determining the jurisdictional objection on 27 May 2022 and upheld the jurisdictional objection.
The Applicant appealed that decision. On 31 August 2022 the Full Bench upheld the appeal, quashed the decision, and remitted the matter back to me.
The matter was listed before me. In light of the considerable time that had lapsed since the matter was first before me, as well as the fact that the Applicant had since obtained further employment, the parties engaged in further conciliation with a view to resolving the matter by agreement. The conferences failed to resolve the matter.
After the conduct of those further conferences, the Applicant’s representative made an application that I recuse myself from further hearing the matter by arbitration on the basis that I had expressed views on matters relevant to the determination of the application.
I take the application to be one made based on the apprehension of bias principle. There are several and sometimes overlapping categories of cases involving disqualification by reason of the apprehension of bias. These include interest, conduct, association and extraneous information[1].
The application made in this case is connected to my conduct during the conciliations conducted subsequent to the remittal by the Full Bench, in particular, the views I expressed during private conferences with the parties.
“The principles stated by High Court in Ebner v Official Trustee in Bankruptcy[2] concerning apprehended bias apply to Mr Han’s recusal application. In short compass, a judge or tribunal member is disqualified if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge or tribunal member is required to decide. This principle gives effect to the requirement that justice should both be done and be seen to be done, which reflects the fundamental importance of the principle that the tribunal be independent and impartial[3]. The application of the apprehension of bias principle requires two steps. First, the identification of the factor which it is said might lead the judge or tribunal member to decide a case other than on its legal and factual merits. Second, there must be an articulation of the logical connection between the matter and the apprehended deviation from the course of deciding the case on its merits[4]. It remains necessary to determine whether the apprehension is reasonable considered in the totality of relevant circumstances, and this is sometimes described as a third step.[5]”
In this matter, the factor identified that might lead to the matter being decided on other than its factual merits are the views I have expressed during private conference as to the merits of the Applicant’s case. The connection between that matter and the apprehended deviation from the course of deciding the matter on its merits is essentially that having expressed views on the merits, this will influence any decision on the merits that I may make.
If a party to a matter before the Commission objects to a particular Member presiding or continuing to preside, the objection should not be sustained unless it is based on a substantial ground for contending that the Member is disqualified from hearing and deciding the matter.
It is not unusual during conciliation with parties for Commission Member to express opinions as to the possible outcomes that may arise in the event the matter proceeds to arbitration. This is often a necessary part of conducting successful conciliations. Ordinarily, this would not give rise to an apprehension of bias. However, in the circumstances of this matter, I have expressed views during private conferences with the Applicant’s representative which I can understand the Applicant’s representative took as concluded views as to the potential range of outcomes of the arbitration which would be unfavourable to the Applicant.
In the particular circumstances of this matter, I am satisfied that I have expressed views during the private conciliation conference that may lead a lay observer to apprehend that I may not bring an impartial mind to the determination of the application by the Applicant
I am satisfied in the circumstances that I should recuse myself from further hearing the application by the Applicant.
The file shall be reallocated, and the parties will be contacted for further programming of the matter in due course.
COMMISSIONER
[1] Webb v The Queen [1994] HCA 30; (1994) 181 CLR 41 at 74; cited in Lidong Han v State of Victoria (Department of Education and Training) [2022] FWC 2948 at 6
[2] [2000] HCA 63, 205 CLR 337; cited in cited in Lidong Han v State of Victoria (Department of Education and Training) [2022] FWC 2948 at 5
[3] Ibid at [6] per Gleeson CJ, McHugh, Gummow and Hayne JJ cited in Lidong Han v State of Victoria (Department of Education and Training) [2022] FWC 2948 at 5
[4] Ibid at [8] per Gleeson CJ, McHugh, Gummow and Hayne JJ cited in Lidong Han v State of Victoria (Department of Education and Training) [2022] FWC 2948 at 5
[5] CNY17 v Minister for Immigration and Border Protection [2019] HCA 50, 94 ALJR 140, 375 ALR 47 at [21] per Kiefel CJ and Gageler J; see also Regional Express Holdings Ltd, Png Yeow Tat, Mark Burgess and Maree Penglis v Hanson [2021] FWCFB 2755 at [57]; United Workers' Union v Hot Wok Food Makers Pty Ltd [2022] FWCFB 158 at [11] and the discussion in Bronze Hospitality Pty Ltd v Hansson [2019] FWCFB 3456 at [22] cited in Lidong Han v State of Victoria (Department of Education and Training) [2022] FWC 2948 at 5
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