Mr Trevor Knowles v BlueScope Steel Limited

[2019] FWC 7998

[2019] FWC 7998

FAIR WORK COMMISSION

DECISION

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

Mr Trevor Knowles
v
BlueScope Steel Limited
(U2019/11608)

COMMISSIONER RIORDAN SYDNEY, 25 NOVEMBER 2019

Application for an unfair dismissal remedy – application for the disqualification of a Member

[1] BlueScope Steel Limited (BlueScope) have sought that I recuse myself from hearing an unfair dismissal application, matter U2019/11608 (Knowles v Bluescope Steel Limited), on the basis that Mr Knowles worked in the same department as an employee who was dismissed in December 2018 and who also sought an unfair dismissal remedy which I determined in June 2019 (U2019/333 Habak v BlueScope Steel Limited Springhill Works). The Australian Workers’ Union has opposed BlueScope’s application.

[2] The current dispute was called on by the Commission for a Conference/Directions Hearing on 20 November 2019. At the conclusion of the conference, when the Directions were about to be issued, BlueScope’s representative, Mr Gutierrez, requested that I recuse myself from hearing the matter. As a courtesy to Mr Gutierrez, who had a degree of difficulty in making this submission, I adopted an unusual practice and suggested that BlueScope submit written submissions by 12pm on Friday, 22 November 2019. BlueScope did not seek an extension of this timeframe but instead filed their submissions at 1.15pm. Despite being filed late, I have taken these submissions into account.

[3] BlueScope’s contention is that the facts in the two cases are similar, that the departmental manager is the same and that my familiarity with the parties and the issues may result in bias. The Manager, Mr Meta, like any number of BlueScope managers, has appeared in front of me on numerous occasions as either a witness or the relevant manager in both hearings and conferences over the last 7 ½ years.

[4] In Finance Sector Union of Australia; Ex parte Illaton Pty Ltd and Finance Sector Union of Australia; Ex parte Swartz 1 (FSU), the High Court of Australia dealt with this issue and held;

“The central principle involved in the applications is well settled. It is that a judge or person obliged to act judicially in the discharge of the functions of a public tribunal should not sit to hear a matter if, in all the circumstances, a party of the public might entertain a reasonable apprehension that she or he might not bring an impartial and unprejudiced mind to the resolution of the question or questions in it…”

“…The nature of industrial relations in this country makes it inevitable that, in a particular industry, the leading employer and employee organisations, and their officers, will be frequently involved in dispute with one another. Obviously, the functioning of the Commission requires that its members participate in the determination of matters in circumstances where they have a familiarity with the industry in which the particular dispute arises, with the context of the dispute and, inevitable, with the facts relevant to the dispute and with one or more of the parties to the dispute. In that regard, it has long been recognised that, in most cases, that familiarity is an advantage rather than a disqualifying factor…”

[5] I acknowledge that the central principle identified by the High Court has been further refined in Ebner v The Official Trustee in Bankruptcy 2.

[6] Whilst the parties have not yet lodged any evidence, witness statements or submissions, there is a fundamental difference between the two unfair dismissal matters. In this matter, Mr Knowles denies the allegation that he has breached BlueScope’s Critical Safety Policy 031. This issue goes to the very heart of section 387(a) of the Fair Work Act, 2009 (the Act). In the other matter, there was video evidence of Mr Habak tipping the coil.

[7] Relevantly, the Full Bench in BlueScope Steel Limited T/A BlueScope Steel Limited Springhill Works v Mr Zaki Habak 3 (C2019/4101) has provided guidance in relation to matters pertaining to BlueScope’s safety policies and the issues raised by BlueScope in their submission.

[8] The High Court decision in FSU is on point. I agree that familiarity in these types of matters is beneficial to the parties. Mr familiarity will ensure that both parties receive their statutory “fair go” in accordance with section 381(2) of the Act.

[9] The application is dismissed.

COMMISSIONER

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 1   66_ALJR_583

 2   2000 HCA 63

 3   [2019] FWCFB 5702