Mr Steven Day v Drake Trailers Pty Ltd

[2015] FWC 6130

[2015] FWC 6130

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Mr Steven Day
v
Drake Trailers Pty Ltd
(U2014/13602)

COMMISSIONER WILSON MELBOURNE, 4 SEPTEMBER 2015

Application for adjournment of recusal application.

[1] Stephen Day is an Applicant in an unfair dismissal matter commenced in November 2014, the substantive merits of which are yet to be heard and determined.

[2] On 26 August 2015, Mr Day’s daughter, acting on his behalf, filed in the Fair Work Commission an Application for Directions on Procedure which, amongst other things, seeks an adjournment of Directions issued by me (referred to as the Recusal Directions), and of a potential consequential hearing. While the application is formally made by Ms Day, I refer to it as an application made by Mr Day since it was made by Ms Day acting on her father’s authority.

[3] The Recusal Directions and potential hearing related to an earlier application made by Mr Day for me to recuse myself from determining matters related to his unfair dismissal application against his former employer, Drake Trailers Pty Ltd, (referred to as Drake Trailers) for reason of what is said to be apprehended bias. The recusal application was made by Mr Day on 17 August 2015, with him making several claims in respect of Directions issued by me at an even earlier time, 30 July 2015, (referred to as the Procedural Matters Directions) which related to the determination by me of several procedural matters requiring finalisation before Mr Day's substantive unfair dismissal application can itself be determined.

[4] The relevant chronology of this matter includes the following;

• On 16 October 2014, Mr Day was informed that his employment with Drake Trailers was terminated, and was told that he was dismissed for reason of redundancy;



• On 5 November 2014, Mr Day commenced an unfair dismissal action against Drake Trailers, claiming that his dismissal was not a genuine redundancy, and thereby an unfair dismissal;



• The matter went to conciliation on 1 December 2014, and did not settle, after which it was referred for arbitration, with hearing Directions being issued;



• In January 2015, the matter was listed for hearing in March 2015, and Directions were issued for the filing of submissions, witness statements and documentary material. The matters to be dealt with in the hearing included both the merits of Mr Day’s application as well as the Respondent’s objection to jurisdiction on the ground that Mr Day’s dismissal was a “genuine redundancy” within the meaning of the Fair Work Act 2009. That hearing has not yet been held, and is no longer the subject of scheduled dates;



• The original hearing Directions required the parties to file outlines of submissions, witness statements and documents upon which they relied. In conformity with those Directions, each party filed materials on 27 January and 17 February 2015. Those materials appear to be in a state that would have allowed the matter to be dealt with in the 4 to 6 weeks after the date of filing – that is, for the originally listed hearing dates of 10, 11 and 12 March 2015;



• In April and May 2015, the matter was the subject of a Mention hearing and subsequent determination by Deputy President Gooley of whether the Commission would require the Respondent to produce certain documents to the Commission. Deputy President Gooley found it was appropriate to make such an order, with certain documents to be provided to the Commission by no later than 19 May 2015. 1 The same decision of Deputy President Gooley also determined that it was not necessary for the Respondent’s representative to seek permission for appearance, for reason that he worked for a registered organisation of employers. Mr Day appealed the decision as it related to representation, with the Full Bench dismissing the appeal on 26 June 2015.2

[5] When the Respondent produced documents to the Commission in response to the order it notified the Commission on 19 May 2015 that it had certain objections to the provision of some, but not all, of the documents to Mr Day. While referring to that objection, I make no finding about whether the Respondent has produced all documents it may have been required to. There has not yet been any determination of that objection.

[6] In July 2015, the Commission considered the Respondent’s objection required determination and that the substantive matter had progressed sufficiently for it to be programmed for hearing, and the parties were approached for their availability and a proposal was put to them for the resolution of the outstanding procedural matters. The email shown at Attachment 1 was forwarded to the parties.

[7] In response to the proposal, each party indicated some problems that may impede a timely hearing of the matter with the Applicant advising the Commission of the following;

“Respondent’s application of 19 May 2015

Due to my medical condition I request the Commission to make its determination of the Respondent’s objection to my inspection of the documents on the papers without a formal hearing with providing its written decision after giving adequate time to the parties for written submissions and submissions in reply.

Based on your direction of 13 July 2015, I expect to be provided with a copy of the Respondent’s Documents Schedule identifying all documents issued to the Commission in May 2015.

Hearing of the Applicant’s unfair dismissal application of 5 November 2014

Due to my carer responsibilities I am not available for the Commission’s hearing in September, October and November 2015. However, I am available 7 December 2015, 8 December 2015, 9 December 2015, 10 December 2015 and 11 December 2015.

I would like to request at least 2 days for the hearing of the above application.”

[8] In turn, the Respondent advised that while its witnesses would be available for a hearing in October, they “are unavailable for the dates specified in November and December due to overseas business travel”.

[9] For reason that the parties’ communication about their availability required determination, as did the Applicant’s access to documents, Directions were issued by me on 30 July 2015 for both parties to provide further information to the Commission on the outstanding matters in order for the determination of the matter of which, if any, documents should not be disclosed to the Applicant, and the dates on which the parties and their witnesses may not be available for hearing, and the reasons why. Those Directions are referred to as the Procedural Matters Directions. The Directions required the filing of material I considered necessary to make a decision on the subjects. Both parties have filed material in response to the Procedural Matters Directions, and, other than for reason of the recusal application, there is now no impediment to determining each remaining procedural matter.

[10] On 17 August 2015, Mr Day made his application for recusal for apprehended bias. The matters disclosed in his correspondence include allegations that I have disregarded correspondence from Mr Day on 27 July 2015 which drew attention to his wife’s disabilities and his carer’s responsibilities; that my Procedural Matters Directions try to overrule Deputy President Gooley’s decision to order the attendance of certain witnesses at the hearing of the matter; and that being the former Fair Work Ombudsman, apprehended bias arises for reason that Mr Day’s daughter made a complaint while I held that position about the handling of her workplace complaint file by staff of the Office of the Fair Work Ombudsman.

[11] In response to Mr Day’s recusal application having been made, both parties were directed to file and serve on or before 26 August 2015 such material as they wished for the Commission's consideration in order to determine the application. The parties were also advised that should they wish to be heard on Mr Day's recusal application, the hearing would be on 28 August 2015. Those Directions are referred to as the Recusal Directions.

[12] On 26 August, before the time he was due to respond to the Commission's Recusal Directions, Mr Day filed an Application for Directions on Procedure, in which he set out the following (in part);

“…

12. On 18 August 2015 Commissioner Wilson issued further directions requesting the Applicant to provide a further submission by 26 August 2015 and attend the purported hearing on 28 August 2015.

13. As a result of such actions, the Applicant’s medical condition has deteriorated. On 24 August 2015 the Applicant attended the medical practitioner who examined the Applicant and confirmed that he will be unfit to deal with the application in the above matter until 24 September 2015. Attached is the Medical Certificate of Dr Efimoff issued on 24 August 2015.

2. Proposed directions

1. The direction of Commissioner Wilson of 30 July 2015 requesting the Applicant’s submission by 27 August 2015 to be adjourned due to the Applicant’s sickness. (Please see the Medical Certificate of Dr Efimoff of 24 August 2015.)

2. The directions of Commissioner Wilson of 18 August 2015 requesting the Applicant to provide a further submission by 26 August 2015 and attend the purported hearing on 28 August 2015 to be adjourned due to the Applicant’s sickness. (Please see the Medical Certificate of Dr Efimoff of 24 August 2015.)

…”

[13] After being contacted by the Commission about the subject the Respondent submitted that it did not oppose Mr Day's request for an adjournment of the recusal application.

[14] After consideration of the matters yet to be determined in this matter; the issues referred to in Mr Day's most recent application; and the Respondent’s agreement to an adjournment, I am prepared to grant the application for adjournment. While doing so, I have some misgivings.. My concern is that the matter is now almost 10 months old, and has not progressed to the point of relevant procedural matters being determined. Further, a hearing is yet to be programmed. While the illness and family matters referred to in Mr Day's several submissions properly deserve being taken into account, so too does the age of the matter and the potential cost or prejudice to the Respondent.

[15] An application for recusal of a Member of the Fair Work Commission is a serious matter that requires careful consideration, as well as timely determination.

[16] Had the Applicant’s application for an adjournment not been consented to by the Respondent, I would have been faced with the wholly unsatisfactory situation of having to determine whether an adjournment of his recusal application should be granted, without first determining the question of apprehended bias.

[17] While I am prepared to grant the application for adjournment on this occasion, Mr Day, and his daughter Ms Day, need to arrange their affairs over the next month so that they are able to respond properly to the Commission's Recusal Directions and a potential hearing of the matter, should they desire to be heard on the subject. A further request for deferral of determination of the recusal application owing to continuing illness is unlikely to be consistent with the Commission's need to accord a fair hearing to all parties.

[18] Other than in exceptional circumstances a further request for deferral may well be refused, and the Applicant risks the Respondent applying to the Commission, whether or not as presently constituted, to dismiss Mr Day's substantive application pursuant to s.399A or s.587 of the Act.

[19] The Recusal Directions issued by me on 18 August 2015 are varied to read as follows;

“[1] Noting that the Respondent has filed its material in respect of the Commission’s Directions issued on 18 August 2015;

• The Applicant is to file in the Commission, and serve on the Respondent, any written submissions he wishes to make on the subject of his recusal application, and any evidence he wishes to have considered, by no later than 5:00 PM AEST on Friday, 2 October 2015;



• The Respondent is to file in the Commission, and serve on the Applicant, any response it wishes to make to the Applicant’s material and evidence it wishes to have considered, by no later than 5:00 PM AEST on Friday, 9 October 2015.

[2] If either party seeks a hearing on the subject of the recusal application, such a request must be made in writing and copied to the other party by no later than 5:00 PM AEST on Friday, 9 October 2015.

[3] If such a request for a hearing on the recusal application is forthcoming, or should I consider one is necessary, the hearing will be held on Tuesday, 13 October 2015, at not before 4:15 PM AEST by video link between Melbourne and Brisbane.

[4] If a hearing on the subject of the recusal application is not forthcoming, and I do not consider a hearing to be otherwise required, the recusal application will be determined by me ‘on the papers’.”

COMMISSIONER

ATTACHMENT 1 – EMAIL FROM COMMISSIONER WILSON’S CHAMBERS – 13 JULY 2015

 1   [2015] FWC 2644

 2   [2015] FWCFB 3997

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