Mr Oliver Doherty v - [2024] FWC 417

[2024] FWC 417

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Mr Oliver Doherty
v

Defend Fire Services Pty Ltd T/A Defend Fire
(U2024/74)

COMMISSIONER RIORDAN

SYDNEY, 20 MARCH 2024

Application for an unfair dismissal remedy – recusal application – application denied

On 2 January 2024, Mr Oliver Doherty (the Applicant) filed an application with the Fair Work Commission (the Commission) seeking a remedy for an alleged unfair dismissal pursuant to section 394 of the Fair Work Act 2009 (the FW Act). The Applicant was dismissed by Defend Fire Services Pty Ltd T/A Defend Fire (the Respondent) on 12 December 2023.

The matter was listed for a preliminary Conference/Directions by telephone on Thursday, 15 February 2024. A resolution was unable to be reached at this Conference and Directions were agreed to by the parties for programming of the Arbitration Hearing.

Following this Conference, the Respondent provided email correspondence to Chambers making a formal application for me to recuse myself from conducting the Arbitration Hearing (Recusal Application).

Directions were therefore set in relation to the Recusal Application, and the substantive directions were put on hold.

This Decision determines the Recusal Application.

Respondent’s Submissions

In support of its Recusal Application, the Respondent submitted that as a result of the Conference on 15 February 2024, it has lost confidence that the outcome of an Arbitration conducted by me will be impartial, fair and just. The Respondent noted that the matter should be decided in accordance with:

“• the requirements of procedural fairness (Natural Justice);

· consistent with the Guiding Principles of the Fair Work Commission. (Refer to 2. About the Commission; 3. Guiding principles and 4. Applying the guiding principles on the Commission’s website).”

The Respondent submitted that in the event I do not recuse myself from hearing this matter, the application of principles above will be in doubt.

The Respondent submitted that the ‘Guiding Principles’ require that Members perform their functions in a manner that:

“• Upholds public confidence in the Commission and in the administration of justice.

· Enhances public respect for the Commission.

· Ensures a safe work environment.”

The Respondent submitted that the Commission’s website states that, to achieve these objectives, Members are required to discharge their official functions in an impartial, safe and respectful manner. Further, it requires that “Any conduct that potentially put these objectives at risk must be carefully considered”.

The Respondent submitted that it therefore requests careful consideration of whether the events during the 15 February 2024 Conference occurred in accordance with the above principles and if not, whether it could be reasonably be concluded that the events are likely to have “irremediably undermined” the Respondent’s confidence in a fair and just outcome of an Arbitration Hearing conducted by me.

The Respondent submitted that considerations as to whether a fair process could be expected if I am to decide the matter, include:

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Mr Oliver Doherty v

Details

AGLC: Mr Oliver Doherty v [2024] FWC 417
Case: [2024] FWC 417
Decision Date: 20 MARCH 2024

CaseChat Overview and Summary

Mr Oliver Doherty, an employee, filed an application with the Fair Work Commission (FWC) seeking a remedy for an alleged unfair dismissal by Defend Fire Services Pty Ltd. The dismissal occurred on 12 December 2023, and the application was lodged on 2 January 2024. The primary legal issues before the FWC were whether Commissioner Riordan should recuse himself from the case due to perceived bias and whether such a recusal would be necessary to ensure the principles of natural justice and procedural fairness.

The Respondent, Defend Fire Services, argued that the Commissioner's conduct during a preliminary conference on 15 February 2024 raised concerns about impartiality and bias. They claimed that the Commissioner interrupted and silenced Mrs Zylia Nuthall, the main spokesperson for Defend Fire, and exhibited disrespectful behavior, potentially reflecting a discriminatory attitude against females. The Respondent further argued that the Commissioner's comments and actions during the conference demonstrated a lack of impartiality and an improper exercise of power, creating apprehensions about the fairness of the proceedings. They requested the Commissioner's recusal and an opportunity to appeal if the recusal was denied.

In response, Commissioner Riordan refuted the allegations, stating that Ms Nuthall was not forcibly silenced but rather asked to remain silent due to technical issues with her phone connection. He also denied any bias or disrespectful conduct, emphasizing his commitment to impartiality. The Commissioner concluded that a fair-minded observer would not reasonably apprehend bias and dismissed the recusal application. However, to avoid wasting the Commission's resources on potential appeals and further delays, the Commissioner decided to return the file to his Regional Co-ordinator for reallocation to another member of the Commission.

The final outcome of the recusal application was that it was dismissed. However, to prevent potential appeals and resource wastage, the Commissioner opted to reallocate the case to another member of the Commission.

Orders