[2021] FWC 4906

FAIR WORK COMMISSION

DECISION

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

Ms Nicola Miles
v
Services Australia
(U2020/10080)

COMMISSIONER SPENCER

BRISBANE, 10 AUGUST 2021

Application for unfair dismissal remedy – consideration of application for recusal on grounds of perceived apprehended bias – application dismissed.

INTRODUCTION

[1] Ms Nicola Miles (the Applicant) filed an application under s.394 of the Fair Work Act 2009 (the Act), alleging that the termination of her employment, by Services Australia T/A Services Australia (the Respondent) was harsh, unjust or unreasonable. This decision concerns a recusal application made by the Applicant.

[2] The Applicant was dismissed from her employment by the Respondent, on the grounds of serious misconduct, as the Respondent had alleged that the Applicant had staged a workplace fall, and later provided false information in a Workers Compensation claim, specific to the fall. 1

[3] The Applicant had contended, that in making its decision to terminate her employment, the Respondent had failed to consider medical information that she considered relevant to the circumstances of the fall. She submitted that ‘confabulations’ 2 due to her medical conditions resulted in her providing a statement in her claim for Workers Compensation that was found to be inconsistent with the CCTV footage of the fall.

[4] The Applicant argued that her collapse at work, on the CCTV footage looks, “to the untrained eye…strange with many moving parts”. She submitted however, that:

“…the Merit Protection Commissioner, [her] initial legal representation and Dr Andrew Short (bio-mechanical expert witness), and even the expert witness for the respondent Dr Hwang, take the view that the collapse is unexplained by the vision itself, and consideration of the medical evidence and forensic examination of the CCTV needs to be assessed in conjunction”.

BACKGROUND

[5] The employer’s reasons for dismissal related to the alleged fall and the related workers compensation claim.

[6] The Applicant was employed in the position of APS4 Service Officer, until 3 July 2020, at which time her employment was terminated for serious misconduct. A USB containing CCTV footage of the Applicant’s alleged fall in front of her desk at the workplace was filed with the application. The Respondent alleged that the fall was staged.

[7] The matter was listed for conciliation before a Fair Work Commission Staff Conciliator, however, was unable to be resolved. The matter was then allocated to Commissioner Booth’s Chambers for arbitration, and directions were set for the filing of evidence and submissions by the parties.

[8] Further to the filing of materials by both parties, Commissioner Booth listed the matter for a conference on 18 December 2020, to discuss referring the matter for a Member Assisted Conciliation (MAC). The MAC was conducted by Vice President Catanzariti. The matter was unable to be resolved, and the file was returned to Commissioner Booth’s Chambers for progress to hearing.

[9] The matter was scheduled for a Mention and Conference by telephone before Commissioner Booth, on 26 May 2021 for further programming. The Respondent wrote to Commissioner Booth’s Chambers, advising that it required to file further evidence in this matter.

[10] Due to emergent circumstances, the matter was later reallocated to me for Hearing. Given the lapse of time, the parties were advised by correspondence that the matter could be listed for a two-day hearing on 25 and 26 May 2021, and the prior filing of materials could be considered at the conference on 11 May 2021.

[11] The Respondent subsequently wrote to my Chambers, noting it sought to file additional materials, and also raising unavailability as to the hearing dates. Given the parties’ requests to file further material, correspondence was sent to all parties, confirming that these matters, (including the conciliation and the delisting of the hearing dates) would be dealt with at the 11 May 2021 conference.

The Directions/Conciliation Conference

[12] It is noted that the Applicant filed further materials on 5 May 2021, ahead of the conference.

[13] The matter proceeded to the Directions/Conciliation Conference as listed on 11 May 2021. The Applicant attended with her support person (name redacted) and the Respondent was represented by Ms Coulthard of Counsel, instructed by Ms Mellor of HWL Ebsworth Lawyers. Permission to appear for the Respondent’s representative had previously been granted when the matter was before the prior member. The Applicant had also had legal representation at that time.

[14] Prior to this conference, it was known that there was a need to set a further direction for the filing of final materials and to get agreed hearing dates, that accommodated all of the parties availability, and that coincided with the regional courthouse availability. Accordingly, given the matter had been listed for conciliation/directions, the parties were asked at the conference, whether they agreed to further conciliation at this time before me. The parties agreed to this. It was explained that a range of matters may be able to be agreed, that were not within the jurisdiction of the Commission to be awarded at hearing. It was explained that whilst the parties had been to a conference before a conciliator, and had held discussions before Commissioner Booth and a MAC before the Vice President, I was not aware of these discussions.

[15] With the consent of the parties, conciliation discussions were undertaken at this conference. Conciliation was undertaken identifying some of the challenges for both parties at arbitration. It was identified that the footage had been viewed and the material filed to date considered. During discussions, the Applicant’s support person sought a particular settlement outcome, and the Applicant made it clear that any settlement of the matter would need to include a transfer of her leased work vehicle. The Applicant was aware that this could not be awarded at arbitration. The Respondent rejected some parts of the settlement and advised that it needed to seek further instructions on the vehicle lease matter, and would revert to the Applicant and Chambers accordingly.

[16] I asked about the fall and the associated investigations and the Applicant’s significant length of service. As per the regular course of conciliation, the parties were requested to consider their respective cases and to consider a compromise, given the challenges for both parties. All of these conversations, for transparency, were undertaken with both parties present. This process is often distinguishable from a MAC where separate discussions are held, when the Member is not arbitrating the matter and does not need to guard against the uncertainty of parties questioning what was said in separate discussions.

[17] Prior to the end of these settlement discussions, a break was granted to the parties, so that the Applicant had an opportunity to speak privately with her support person. Following this break, the Applicant was redialled into the conference and advised that she was alone, as her support person, who she stated had been diagnosed with Autism Spectrum Disorder (ASD), 3 had become emotional and needed to remove himself from the discussions. It had been clear that the Applicant’s support person was frustrated with the Respondent’s opposition to the Applicant’s settlement offer.

[18] The Applicant advised that regarding any settlement of the matter, she wished to seek legal advice before formally agreeing to any resolution. This was confirmed, noting that the Respondent needed to seek further instructions regarding the leased vehicle, the Directions/Conciliation conference was concluded. Correspondence was sent to the parties following the conference, confirming that the matter was being held over, pending the Respondent seeking further instructions on the vehicle, and the Applicant obtaining legal advice. The correspondence provided that in the event that the matter was not resolved, the parties were required to outline any further materials they sought to file, to Chambers by 21 May 2021.

[19] It was noted that as this conference included conciliation discussions, it was conducted on an agreed without prejudice basis and was not recorded by Chambers. The conference also included discussions related to the hearing, its timing and location. The Applicant stated that she was concerned that she could not travel to Brisbane for the hearing, it was confirmed to her at the conference, that the hearing would occur where she resided.

Correspondence following the Directions/Conciliation Conference

[20] On 17 May 2021, the Respondent wrote to Chambers advising that it had made enquiries into the leased vehicle; and provided that the lease agreement was between the Applicant and the Bank, and the Respondent was not a party to the lease, (nor guarantor). The Respondent provided that it could do nothing to intervene in that matter, and it was open to the Applicant to contact the Bank to discuss management of the lease. The Respondent also outlined the further materials it would seek to file, and its particularised availability for programming of the hearing.

[21] On 19 May 2021, further directions were issued for the filing of the supplementary material, referred to by the Respondent. The Applicant was provided with a right of reply in these directions.

Recusal application

[22] On 24 May 2021, the Applicant filed a written document seeking that she inferred from the conciliation that I should recuse myself from hearing the matter, on the basis of apprehended bias.

[23] A directions conference was listed regarding the recusal application. Further to the notice of listing issued to the parties for the directions conference, the Applicant wrote to Chambers advising that she was unable to obtain legal representation and her representative/support person, would not be attending the directions conference given his prior experience, at the conference of 11 May 2021. The Applicant advised she would therefore be attending on her own behalf. In further correspondence, the Applicant again stated that “(name redacted) is on the spectrum and is unable to continue acting as her support person, as he was unable to deal with ‘confrontation’ and during this process his ‘chronic anxiety issues’ had been triggered”. Written directions were instead issued for the filing of any other materials addressing the recusal application. The Respondent provided submissions in response to the recusal application. Neither party provided statements of evidence.

[24] The Applicant and Respondent advised Chambers that they were agreeable to the recusal application being dealt with on the papers, as filed.

SUMMARY OF THE APPLICANT’S RECUSAL SUBMISSIONS

Prior conciliation conferences

[25] The Applicant outlined that on 22 September 2020, a conference was conducted before Commissioner Booth, at which the Applicant was represented by Mr Makamure of Legal Aid. She noted that on 6 November 2020, Mr Makamure ceased working for Legal Aid, and the case was handed to another Solicitor.

[26] The Applicant submitted that in December 2020, she was unable to respond to material of the Respondent in a timely manner, due to illness, and legal “funding was withdrawn”. The Applicant’s representative filed a Form F54 – Notice that lawyer or paid agent has ceased to act for a person, on 16 December 2020. The Applicant submitted that she made an application to Legal Aid, to review their decision; the Applicant proceeded without legal representation.

[27] The Applicant noted that the matter was referred by Commissioner Booth to Vice President Catanzariti to conduct a MAC. She submitted the MAC was conducted in “private” (Applicant’s emphasis) on 15 February 2021, and while she stated that she indicated to the Vice President that she sought to file and rely on additional evidence, she also deemed it appropriate to make an offer for resolution. The Applicant set out that, at the outset, she restated an earlier offer to resolve the matter; however, this offer had already been rejected by the Respondent.

[28] The Applicant noted that on allocation to my Chambers, the matter was listed for a further conciliation conference. She submitted in her recusal application that:

“this Conciliation before Commissioner Spencer was the first and only meeting where both the Respondent and the Commissioner held all of the evidence for due consideration in a proper conciliation attempt. Commissioner Spencer confirmed that she had "moved through" our evidence.”

[29] However, it was understood that the Respondent had not filed all of their material, nor had the Applicant’s reply material been received.

Conciliation conference of 11 May 2021

[30] The Applicant submitted that the conciliation conference of 11 May 2021 was an “open conference” in which the Respondent was able to hear her and her support person at all times, and similarly, they could hear the Respondent’s replies.

[31] The Applicant submitted that she outlined during the conciliation conference that at the MAC, the Vice President had not held all of their evidence, including an expert report that she filed with her materials of 5 May 2021.

[32] The Applicant submitted that in the conciliation conference, she was asked, with the Respondent on the line, whether the Vice President, when conducting the MAC, asked her to consider the challenges of the case.

[33] The Applicant submitted that she was ‘stunned’ at the discussion with the parties, on the challenges to the case, the footage of the video, and the possible matter of costs.

[34] The Applicant submitted that at the time of the MAC, the Vice President had made some similar comments to what I had raised. However, the Applicant noted that this was before the Vice President had reviewed their further evidence.

[35] The Applicant submitted that in response to this unexpected questioning, she submitted that her support person, agreed that it had been discussed that some areas of the video of the fall were problematic. The Applicant submitted that it was stated that these were matters, that need to be taken into consideration in conciliation.

[36] The Applicant considered that, it was raised that having reviewed the evidence, the CCTV footage presented challenges for her case. She submitted that the matter of costs, was raised in those circumstances.

[37] The Applicant submitted that on the basis of the conciliation comments, she interpreted that it was considered that the CCTV footage proved her guilty of staging the fall. The Applicant submitted that the Respondent’s claims as to the nature of her fall had been “thoroughly discredited”, but that (based on her assessment of the tone on the phone call) I had relied on the Respondent’s position and she considered that I had “aggressively push[ed] [her] to accept the terms of the respondent”.

Submissions on bias

[38] The Applicant’s perception was that I had already had regard for the Applicant’s evidence that no possible additional evidence or argument could have been provided that would have the effect of persuading me to a position other than the one that they alleged I already held. There was a series of matters that underpinned the termination; the alleged fall, the Workcover claim and the alleged access of records. However only the fall was referred to the conciliation.

[39] The Applicant submitted that she had reached this view, given the frustration expressed at the Applicant not accepting the offer from the Respondent. The Applicant had made a counteroffer regarding her vehicle, this was under consideration by the Respondent at the end of the conference.

[40] The conference had been listed for conciliation/directions as further material was to be filed. The Applicant noted that I had raised if there was "any further medical evidence" to be provided, and she argued that this indicated, that I found the medical evidence, provided by the Applicant to date, to be insufficient. Further, the Applicant argued:

“Such is the nature of the syncope, and the complications and variation around specific cause and presentation of such events, the additional medical evidence requested by Commissioner Spencer is obviously impossible to obtain. Nothing short of an autopsy immediately after the syncope will hope to provide anything like evidence of the direct cause, and any true medical expert would reiterate that.”

[41] The Applicant stated she held significant concern about the ability to persuade me to their position on the CCTV footage, on their existing evidence.

[42] The Applicant submitted her belief, that I considered her and her support person’s position at conciliation, to be unrealistic for not accepting the Respondent’s proffered resolution. The Respondent, at conciliation, was further pressed by me to explore the Applicant’s proposed conciliation offer.

[43] The Applicant pointed to the different approaches between the MAC and the conciliation conference. The Applicant submitted that I had noted possible problems with her case, and queried her view of her job prospects, before the Respondent. Due to these factors, the Applicant submitted that a fair-minded observer would perceive that I might not bring an impartial and unprejudiced mind to the hearing of the matter. Her view was that based on the preliminary questioning at conciliation, that I hold a “strong, pre-determined position in relation to [her] guilt in this matter”, and that this is a position that will be “impervious to both any argument [the Applicant] could make or any further medical evidence”. Further, the Applicant submitted that my alleged comments as to the CCTV footage “emboldened” the Respondent in its position, and thereby removed any incentive for the Respondent to negotiate a settlement of the matter. On this basis, the Applicant sought that I recuse myself from hearing the matter. The Applicant confirmed that she had restated an offer that was already rejected previously by the Respondent and did not have a further offer ready. The Applicant’s support person was aggrieved that the Respondent again rejected their offer, and after discussing alternatives with her, she raised a new matter for conciliation.

SUMMARY OF THE RESPONDENT’S RECUSAL SUBMISSIONS

[44] The Respondent submitted that the Commission has previously considered the issue of apprehended bias, in circumstances where a member of the Commission has arbitrated a matter after being involved in the conciliation. 4

[45] The Respondent submitted that the Commission's position is that:

A. it is a regular feature of the Commission's jurisdiction that a single member may conduct a conciliation conference prior to determining the matter by way of arbitration. 5

B. while there are public policy reasons why caution should be exercised when conciliating and arbitrating a matter, there is nothing preventing a member from performing both functions; 6 and

C. a single member does not have the capacity under the Act to cease to deal with a matter allocated to them, apart from a member recusing themselves from a matter as a result of actual or a reasonable apprehension of bias. 7

[46] On this basis, the Respondent submitted that the question for determination is whether the comments made by the Commissioner during the conciliation conference demonstrated a bias or gave rise to an apprehension of bias.

Relevant law regarding the bias rule

[47] The Respondent noted that there is an apprehension of bias on the part of a decision maker when 'a fair-minded lay observer might reasonably apprehend that the judge [or, in this case, the Commissioner] might not bring an impartial mind to the resolution of the question to be decided'. 8

[48] It was submitted on behalf of the Respondent that determining this question involved the application of the following two steps:

(a) identification of the matter which underpins the apprehension that a decision-maker might decide a case other than on its legal and factual merits; and

(b) articulation of the logical connection between that matter and the deviation from the course of deciding the case on its merits.

[49] In non-judicial settings, emphasis is placed on the overall integrity of the decision making process. This includes considering:

(a) the nature of the body making the decision; 9

(b) the nature of the decision to be made; 10

(d) the relevant statutory framework. 12

[50] It was further submitted that an apprehension of bias must be 'firmly established' 13 and is not sufficient if the fair-minded observer only 'has a vague sense of unease or disquiet'.14

The matters the Applicant says underpins the apprehension of bias

[51] The Respondent noted that the Applicant alleged that an apprehension of bias arose because of the Commissioner's comments, made during conciliation, regarding:

(a) the available CCTV footage of the Fall, which was submitted as evidence by the Respondent on 4 December 2020;

(b) the Applicant's medical evidence, which refers to the Applicant's:

(i) submissions and statement dated 28 October 2020; and

(ii) reply submissions dated 16 December 2020; and

Comments on the CCTV footage

[52] The Respondent submitted that the comments made by the Commissioner about the CCTV footage occurred in the context of the Commissioner:

(a) urging the Applicant to consider the settlement offer critically, noting the Applicant did not have legal representation or advice;

(b) stating that she had not read all of the evidence;

(c) exploring the position held by Vice President Catanzariti regarding the strength or perceived deficiencies in the CCTV footage. In response, the Applicant offered Vice President Catanzariti's views expressed to the Applicant in private conference that the CCTV footage was "problematic";

(d) stating her preliminary view was to agree with Vice President Catanzariti's assessment;

(e) highlighting the risks to both parties with proceeding to hearing; and

(f) adjourning the conciliation conference to allow:

(i) the Applicant to obtain or attempt to obtain legal advice regarding her claim; and

(ii) the Respondent to obtain instructions on the car lease issue, which may have been relevant to whether the Applicant would agree a settlement offer.

[53] The Respondent submitted that the context in which these conversations occurred may be contrasted with the tribunal member's comments regarding the credibility of the Applicant's evidence in SZRUI v Minister for Immigration, Multicultural Affairs and Citizenship. 15 These comments were held by the Full Federal Court (in separate judgments) to demonstrate the Applicant could not say anything to shift the tribunal member's view. It is noted that these comments were not made by the tribunal member during conciliation, but while determining the matter.

Comments on medical evidence

[54] The Respondent submitted that the comments in relation to the medical evidence were made by the Commissioner in the context of her considering the programming and procedural matters required to list the matter for hearing. That is, early during the conciliation conference, the Applicant indicated they had filed all of their evidence but reserved their right to file further evidence. The Respondent understood that, to timetable the matter, the Commissioner would need certainty about how much evidence each party intended to file.

Comments on awarding costs

[55] The Respondent submitted that it understood the explanation provided by the Commissioner about awarding of costs, had occurred in the context of seeking to highlight the broader consequences of proceeding to hearing, where the Respondent has incurred costs by the engagement of Counsel; and that the Applicant remained unrepresented and unfamiliar with such matters.

[56] The Respondent understood that it was entirely consistent with the role of the Commissioner, as a conciliator, to explain the relevant legislative provisions and draw to the attention of self-represented parties procedural matters that may have an impact on their decisions regarding settlement.

Frustration toward the Applicant

[57] The Applicant contended that the Commissioner expressed frustration with the Applicant’s support person and at the Applicant’s refusal to accept the offer, such that the Commissioner would not bring an impartial mind to the matter.

[58] The Respondent submitted that the Commissioner's alleged frustration with the Applicant (and her support person) are better seen as the Commissioner asking questions in the context of seeking to resolve the matter via settlement. The Respondent submitted that the Commissioner queried the Applicant about what settlement terms would be amenable to her. With the knowledge of the Respondent's position, the Applicant did not appear to be able to articulate any alternative suitable offer.

[59] The Respondent argued that if the comments were held to be made in frustration, this fact on its own does not amount to a reasonable apprehension of bias, so as long as it does not affect the function the Commissioner was performing. 16 Given that the conciliation conference was held over so that the Applicant could further consider her position, the Respondent considered that such comments did not compromise the role the Commissioner was performing.

There is no logical connection between the matters identified by the Applicant and the alleged deviation from the course of deciding the case on its merits

[60] The Respondent submitted that the Commissioner's comments prompting the Recusal Application occurred in the context of the Commissioner conciliating the matter. The concerns regarding the apprehension of bias relate to the perception as to whether the Commissioner is able to arbitrate the matter on its merits. The Respondent submitted that the Commissioner conducted herself consistent with her role as a conciliator and, accordingly, her comments do not give rise to an apprehension of bias.

[61] The Respondent noted that the National Alternative Dispute Resolution Advisory Council defined conciliation as follows:

‘Conciliation is a process in which the parties to a dispute, with the assistance of a dispute resolution practitioner (the conciliator), identify the issues in dispute, develop options, consider alternatives and endeavour to reach an agreement. The conciliator may have an advisory role on the content of the dispute or the outcome of its resolution, but not a determinative role. The conciliator may advise on or determine the process of conciliation whereby resolution is attempted, and may make suggestions for terms of settlement, give expert advice on likely settlement terms, and may actively encourage the participants to reach an agreement.’ 17

[62] In the industrial context, in Clermont Coal Pty Ltd v Construction, Forestry, Mining and Energy Union, 18 the Full Bench of the Fair Work Commission defined conciliation as follows:

“[29] The meaning that should be ascribed to the word ‘conciliation’ pursuant to ss. 739 and 595 of the [FW] Act does not require a convoluted answer. It is to be given its long standing meaning in an industrial context. That meaning accords with the proposition found in Finance Sector Union of Australia and New Zealand Banking Group Limited in which the Full Bench of the Commission referred to recommendations as “a common feature of the conciliation process” and made the following observations:

"[32] We make it clear that in our view the making of a recommendation is often a useful tool in the conciliator’s armoury and can facilitate the parties reaching agreement. As the President of the South Australian Commission said in Re: Clerks Customs Agent (SA) Award:

“The prime charter course of the Commission is, in any proceedings before it under the statute, to attempt to effect conciliation by mediation between the parties and that is a process well known to all who appear in this jurisdiction. It is, in our view, quite proper, indeed quite normal, in the course of many if not most mediations, for the person attempting the mediation to make positive suggestions to the parties as to what might be a suitable basis for resolving the matter, indeed, if felt appropriate, expressing strong views as to what might be a possible consequence, prima facie, of any arms length arbitration before the Commission. There is nothing improper about that. It happens every day of the week”.

[33] We agree with the above observations.” 19

[63] The Respondent submitted that, at all times, the Commissioner acted in a manner consistent with her role as conciliator (as permitted by the Act) when she:

(a) expressed an opinion to the Applicant regarding prospects of success of the Applicant's case;

(b) provided an opinion to the Applicant in relation to the strengths and weaknesses of her case, including the strengths and weaknesses of the Applicant's evidence; and

(c) provided an opinion to the Applicant regarding the possible consequences of the Applicant pursuing her case and costs.

[64] In this respect, the Respondent noted that even strong views may legitimately be expressed to parties, by a member of the Commission when conciliating a dispute between them. 20

[65] The Respondent submitted that there was nothing inherent in the conciliation process that required opinions or recommendations to be made without the presence of the other party. Rather, consistent with the notion that conciliation is more "interventionist" than mediation, and reflecting the advisory role of the conciliator, opinions or recommendations are regularly made to both parties (in front of the other party). 21

[66] Further, the Respondent submitted that even in the context of arbitration, it is entirely consistent with the principles of procedural fairness to alert an Applicant to the perceived deficiencies in their claim, as long as the views expressed are tentative. 22 The Respondent submitted that it was clear from views expressed by the Commissioner to the Applicant that they were at all times tentative.

CONSIDERATION

[67] It is well established that a Commission member should not hear a case if there is a reasonable apprehension that they are biased. 23 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.24

[68] It is well established before the Commission 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. 25 This means that members should not accept the suggestion of apprehended bias too readily,26 and simply refer matters to be allocated to other Members.

Jurisdiction to determine this recusal application

[69] In the decision of Loretta Woolston v The Uniting Church in Australia Property Trust (Q.) t/a Blue Care Bli Bli Aged Care Facility, 27 a Full Bench of the Commission considered an appeal of two decisions. The first decision declined the appellant’s recusal application and the second rejected her unfair dismissal application. With respect to the appeal of the first decision the Full Bench stated as follows:

“[9] With regard to the decision by the Deputy President not to recuse herself, the appellant submitted that the Deputy President was in error in “investigating” herself. As she put it:

“Public expectation is rife these days about people who cannot investigate themselves without being inept and corrupt.”

[10] We are satisfied that the Deputy President dealt with the recusal application appropriately. It is incumbent on a member of the Commission, on receiving an application such as the one made by the appellant, to hear the application and consider whether there are grounds to recuse oneself from dealing with the matter. 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 himself or herself 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. The Deputy President acted consistently with this practice. Moreover we are satisfied that the Deputy President made no errors in making her decision to dismiss the application. We are not satisfied that the grant of permission to appeal the Deputy President’s decision regarding the appellant’s recusal application would be in the public interest. To the extent that s.400(1) may not be applicable to the recusal decision, we do not consider that there is any discretionary basis to grant permission to appeal. Permission to appeal is therefore refused.”

(Emphasis added)

[70] In this decision, the Full Bench set out the principle that an application for a decision-maker to recuse themselves from hearing and deciding a matter, on the ground of actual, or apprehended bias, is to be determined in the first instance by that decision-maker. This was advised to the parties.

Actual bias

[71] With respect to a judicial officer being disqualified from hearing a matter because of an allegation of actual bias, the seriousness of such an allegation was emphasised by the Full Court of the Federal Court in Spirits International B.V. v Federal Treasury Enterprise (FKP) Sojuzplodoimport 28, where the Full Court stated:

“13. We commence with the proposed case on actual bias. An allegation of the kind proposed is a very serious one. It is, surely, about as serious an allegation as any that could be made against a judicial officer. We would associate ourselves with what was said on this subject by Cole JA in the unreported judgment of the New South Wales Court of Appeal, given on 7 April 1995, in Ramadan v New South Wales Insurance Ministerial Corporation, namely, that a finding of actual bias “involves a finding of judicial impropriety, and probably of judicial misconduct. It involves a finding of breach of the judicial oath.” Making a distinction between apprehended bias and actual bias, his Honour also said:

Actual bias, in those circumstances, would involve a finding that the judicial officer did not attend properly to the evidence, but rather reached a decision determined by reference to previously expressed views. It involves a finding that the judicial officer was in fact unable to, and did not, comply with his judicial obligations.

Although ultimately a conclusion by way of inference may be involved, the facts upon which the Court will be invited to draw such an inference must, we would hold, be set out with particulars no less fulsome than would be required to support an allegation of fraud. Do the particulars contained in para 4 of the proposed rejoinder satisfy this requirement?”

[72] The Full Court of the Federal Court in Minister for Immigration & Multicultural & Indigenous Affairs v SGJB 29 held there must be clear evidence of claimed actual bias, stating:

“[20] The primary judge held that the RRT’s decision was invalid and should be set aside on the basis of actual bias. In essence the primary judge relied upon what might be thought to be a lack of procedural fairness in the process adopted by the RRT (see below) and what the primary judge concluded were factual errors in its analysis so as to reach the conclusion that the RRT had been biased. In our view the primary judge was in error in reaching the conclusion that the RRT was affected by actual bias. The situation is analogous to that in Minister for Immigration and Multicultural Affairs v SCAR (2003) 198 ALR 293 at [18]. In our view a claim of actual bias must be established by evidence. We do not deny that in a particular case an inference of actual bias could be made from evidence limited to factual errors in reasoning combined, perhaps, with an unfair process. However, the relevant errors and the lack of procedural fairness would have to be so extreme that no other reasonable inference except actual bias was reasonably open. Obviously enough that is going to be a very rare case. Plainly enough, it is not this case.”

[73] In this matter, the Applicant’s submission is one of apprehended bias, based on the alleged expression of a ‘pre-determined view’ in relation to the CCTV footage, based on considerations of commentary, tone and the joint session of the conference.

[74] The Applicant in this matter has not provided evidence of any actual bias or evidence that could draw an inference of actual bias being drawn. On this basis, actual bias has not been argued or established, and therefore only necessitates dealing with whether I should recuse myself on the grounds of apprehended bias.

Apprehended bias

[75] 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. 30

[76] It is an established principle before the Commission that the expression of a provisional view on a particular issue, or warning parties of the outcome of a provisional view, is usually entirely consistent with procedural fairness. 31

[77] In the recent decision of Amec Foster Wheeler Australia Pty Ltd v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (Amec), 32 the Full Bench considered whether a member of the Commission should have recused themself, in circumstances where they were alleged to have expressed a clear view in conciliation.

[78] In their decision, the Full Bench recognised that the earlier decisions of CFMMEU v Watpac Construction Pty Ltd (Watpac) 33and United Firefighters’ Union v Gavin Wright; Country Fire Authority (UFU)34gave rise to a fundamental misunderstanding, that established a basis, separate from the rule against bias, upon which an application may be made for a member who has conciliated a matter to recuse themself.

[79] The Full Bench in Amec sought to provide clarity on when a member may be required to recuse themselves, in circumstances where they have conducted a conciliation of a matter, and intend to arbitrate the matter, stating:

“[45] Accordingly, we consider that the appeal should be dismissed. In reaching this conclusion, we have applied what we consider to be the correct principles which are summarised as follows:

(1) The conduct of conciliation conferences prior to the arbitration of matters is a normal and regular feature of the Commission’s jurisdiction.

(2) If, in the conduct of a conciliation conference, a member exhibits actual bias or gives rise to a reasonable apprehension of bias, the member is disqualified from further dealing with the matter and must recuse themself. If a party considers that there has been a breach of the rule against bias by a member at a conciliation conference, the party may make an application for the recusal of the member. The usual practice is that this application should in the first instance be made informally and, if not acceded to, should be the subject of a formal hearing and decision. A party aggrieved at a member’s decision in respect of a recusal application may, with permission, appeal the decision under s 604 of the FW Act.

(3) Apart from recusal for breach of the bias rule, single members do not have the capacity under the FW Act to decide to cease to deal with matters which have been allocated to them for determination by the President, or a presidential member exercising the President’s powers on delegation, or to transfer such matters to another member.

(4) If a party to a matter which has participated in a conciliation conference considers that there are public policy reasons why the member who conducted the conference should not proceed to arbitrate the matter, they may convey that view to the member’s chambers. It would be appropriate in this circumstance for the member to raise the matter with the President or presidential member who allocated the matter in the first place (allocating member). However, any request made by a party of this nature should not be treated as an “application” made under the FW Act to be subject to a formal adjudicative process.

(5) The allocating member may then decide to re-allocate the matter, or not, having regard to the circumstances of the case. We agree with the Full Benches in Watpac and UFU that where, in a conciliation conference, a party has made without prejudice settlement proposals, has made concessions, or has communicated information about its case which it would not be prepared to disclose at a hearing, that may, absent any relevant countervailing factors, lead to the matter being re-allocated.

(6) Countervailing considerations which may be taken into account by the allocating member may include: whether the parties engaged in the conciliation process on the basis that the member would continue to sit on the matter; the extent to which all parties were present at all stages of the conference; whether the conference was recorded; the need to avoid “member-shopping”, especially at smaller Commission registries; any significant delay which might be caused by the re-allocation of the matter; the efficient use of the Commission’s resources; and the general utility attached to conciliation conferences as a means to identify the real issues and the most efficient means for their adjudication.”

[80] The present matter is distinguishable from the decision of Watpac, in that Watpac did not relate to a situation where a reasonable apprehension of bias was claimed, but rather to the alternative situation, whereby a party objected to a member arbitrating a matter, simply on the basis that the member had conciliated the matter. With this point being clarified in Amec, it is now recognised that a member having engaged in the conciliation of a matter, does not automatically give rise to an obligation for them to recuse themselves from arbitrating the same matter.

[81] The Applicant in the present matter had raised the following concerns that they argued, demonstrated an expression of a view or prejudgment on my part, that would disqualify me from arbitrating the matter:

1. That I had expressed a view in relation to the medical evidence;

2. That I had expressed a view in relation to the CCTV footage;

3. That I had expressed perceived frustration at the Applicant not accepting the Respondent’s offer; and

4. That I raised the issue of costs as a pretermination of the merits of the matter.

[82] I will now deal with each of these assertions in further detail.

Medical evidence

[83] The Applicant argued that my having asked whether the Applicant sought to introduce any further medical information, demonstrated that I considered the medical evidence that they had filed to be insufficient, and thus formed a reasonable apprehension of bias.

[84] The Respondent submitted that the comments in relation to the medical evidence were made in the context of me considering the programming and procedural matters required to list the matter for hearing. The conference listing had dealt with the conciliation and directions for hearing. This was on the basis that the Applicant had indicated that they had filed all of their evidence, but reserved their right to file further evidence. The Respondent was seeking dates to file further evidence. The Respondent had understood that, to timetable the matter, I would need certainty about what evidence each party intended to file, in circumstances where the Respondent was intending to file further evidence.

[85] The Applicant’s submission was misconceived, in that they incorrectly drew the conclusion that my having queried whether they intended to file additional medical information, demonstrated that I had formed a final view in relation to the medical evidence that they had already filed to date. This is not accurate, rather I had queried the introduction of further medical evidence in circumstances where the Applicant had earlier foreshadowed the provision of further material. The Directions would need to accommodate the Respondent’s reply to this and a final reply by the Applicant. The Applicant, in presenting this argument, did not take into account this context, instead relying on the comments in a vacuum to support their interpretation of what the comments could be inferred to mean.

[86] For the sake of clarity, at no time during the conference did I express any final view about the merits of the Applicant’s medical evidence or the merits of her application at large.

[87] 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. 35 Bare assertions are not sufficient in this regard. In the present matter, a reasonable observer would not have drawn a ‘logical connection’ that my comments regarding the provision of further medical evidence proved that I had formed a final view in relation to their medical evidence, and that I considered their evidence insufficient. I do not find the Applicant’s argument persuasive in this regard, and I do not consider that the comments made in relation to the medical evidence gives rise to a reasonable apprehension of bias.

Perceived frustration at not accepting the Respondent’s offer

[88] The Applicant had argued that my alleged frustration at her (and her support person) in refusing to accept an offer from the Respondent in conciliation, was such that I would not bring an impartial mind to the matter, and would give rise to a reasonable apprehension of bias.

[89] The Applicant had argued her belief on the basis of the demeanour at the conference, that I considered her and her support person, “stubborn and unrealistic”.

[90] The Respondent had argued that my alleged frustration with the Applicant was better viewed as the member asking questions of the Applicant in the context of seeking to resolve the matter via settlement, in circumstances where the Applicant had not been able to articulate an alternative offer to that of the Respondent. The Respondent further considered that such comments did not compromise the role that I was performing.

[91] The Applicant made reference to the support person having a disability and my not accommodating such. The Applicant’s support person was articulate and forthright, and no reference was made to any condition he may have had until after the adjournment near the conclusion of the conference. At this time, all that occurred was that the Respondent was required by me to seek further instructions on the Applicant’s settlement proposal. Accordingly, nothing further occurred with the conciliation, and the Respondent was directed to respond on the matter as soon as possible. Upon receipt of the response after the conference, the directions for hearing were set.

[92] All comments were made in the context of exploring conciliation between the parties. The conference concluded without a resolution being reached, in order to allow the Respondent to make enquiries regarding the Applicant’s new proposal regarding the vehicle lease arrangement, as this became a central point in the conciliation discussions and was important to the Applicant and was a matter that could not be ordered at hearing. The conference concluded to allow the Respondent to take instructions on this matter, and to allow the Applicant to consider their position and seek legal advice.

[93] 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. 36 At all times during the conference, I had made it clear to parties that any issues raised, were at all times made on a preliminary or provisional basis, (particularly as all of the evidence had not been filed). In addition, not all reasons for the termination were discussed.

Costs

[94] The Applicant further argued that by raising the potential of costs for parties, had the matter progressed to a hearing, was the expression of a firm view that the Applicant’s case would not be successful at hearing. 37

[95] The Respondent submitted in this regard that it understood my explanation of the potential costs implication had occurred in the context of seeking to highlight the broader consequences of proceeding to hearing, in circumstances where the Respondent would also incur legal costs as they had engaged Counsel in contrast to the Applicant (at that stage), potentially remaining unrepresented. The Applicant was seeking representation.

[96] It is entirely consistent with the role of a member engaging in conciliation to set out procedural matters that are relevant to progressing a matter to arbitration, in order that parties are made aware of procedural matters that may affect their decision making regarding achieving a conciliated outcome. It is the regular course that when engaging in conciliation with parties, unfamiliar to the Commission’s processes, care is taken to ensure all of the relevant procedural matters are explained in order that parties can make informed decisions, in relation to the progression of matters.

[97] The comments made during the conference regarding costs were not made with an intent to demonstrate a view of the arbitration.

[98] I do not consider that comments regarding costs were capable of leading a fair minded lay observer to the conclusion that I would not bring an impartial mind to the resolution of the merits of the matter. Nor do I consider there to be a logical connection between my comments and the possibility that I might depart from making an impartial decision. This has to be considered in the context that further evidence was to be filed by both parties.

Comments regarding the CCTV footage

[99] The Applicant had submitted that I stated a belief that, having reviewed the evidence, the CCTV footage presented a problem for her case, and that I had formed a predetermined view in relation to this, that gave rise to a reasonable apprehension of bias.

[100] The Applicant critiqued that I queried the video footage with the Respondent on the line. In circumstances where the matter is set for arbitration, the aim in the conciliation was to be transparent and hold all discussions in joint session.

[101] The Applicant conceded, (as per the conference) some areas of the video were discussed in the MAC to be problematic, but referred to the new expert evidence, filed since the MAC in dealing with the issues. It was also recognised that further evidence may be filed by both parties.

[102] Minimum conciliation was engaged in, in terms of settlement discussions, and whilst I respect the protocol of not repeating settlement discussions, it is reasonable to mention a central element for the Applicant at conciliation was the issue of her being able to resolve her vehicle lease arrangement, and that would not be within the jurisdiction of the Commission to order at hearing. This issue occupied some time in the conference and was the element on which conciliation ended, with the Respondent stating that given this was the first time that this particular issue was raised, they would seek instructions on it, and the matter was adjourned on that basis. Conciliation did not resume.

[103] As set out in the decision of Oram v Derby Gem Pty Ltd, 38 the expression of a provisional view on a particular issue was found to be entirely consistent with procedural fairness. The conciliation comments regarding the CCTV footage was intended to assist the parties to identify potential conciliated outcomes and potential evidentiary complexities they might face if the matter proceeds to arbitration. The Applicant’s assertion that that this view was a final view, is inconsistent with the fact that further evidence was yet to be filed, and may have assisted the Applicant in this regard.

[104] For the reasons set out, I do not consider, 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. No perceived pre-judgment can be drawn from the conciliation comments. This is particularly so, given the full range of termination reasons were not discussed and the filing of submissions had not been concluded.

CONCLUSION

[105] In the present matter, the circumstances cannot give rise to valid apprehension of bias concerns, given the manner in which the conciliation conference was conducted in joint session, the context of the preliminary statements made on only one element of termination, in addition to the further filing of evidence (yet to be considered). It is a normal course for the parties to be advised of potential hurdles, should the matter proceed to hearing with cross-examination of the parties’ evidence. I do not consider that there is any basis, on the interpretation raised, that a fair-minded observer would form the view that I have a fixed view of the incomplete evidence and the matters to be determined at hearing, on consideration of all evidence and submissions before the Commission. There is no basis for concern that due consideration will not be given to these matters, and any further matters that may arise in cross-examination at the hearing.

[106] No concluded view was expressed to the parties. The comments at the consent conciliation were aligned to usual questions addressed to parties, to consider any challenges that might arise at hearing, in relation to their cases. No comment was made in relation to either party’s case in relation to all of the relevant reasons for the dismissal.

[107] Whilst there was a preparedness by the parties to conciliate the matter, an agreement could not be reached. The Applicant and her support person were significantly frustrated with the employer’s position and accordingly, the process before the Commission. The Applicant provided a new offer of conciliation for the employer to consider.

[108] Further to this, at the conference (as foreshadowed prior with the parties) there were relevant discussions about the location, the potential dates for the hearing and the dates for the filing of further material.

[109] It is understood that the dismissal of the Applicant’s employment has had a significant impact and there are serious issues to be considered at hearing in relation to the range of allegations forming the reasons for termination. It is also accepted that the Applicant had particular matters that she required from the conciliated outcome, as she was entitled to propose. The matter could not be resolved, and relevant questions were raised with the parties during this conference as is the regular course of conciliation.

[110] The hearing will cover similar ground and accordingly, it is valuable at conciliation that parties consider the relevant outcomes associated with the assessment of a dismissal at arbitration.

[111] The failure to resolve a matter following conciliation (particularly when the range of reasons for the termination did not form part of the discussions and not all of the material was before the Commission), does not provide a basis for justifying moving this matter for hearing before a fourth Member of the Commission. Granted the Applicant and her support person were unfamiliar with conciliation, and they had some particular expectations in relation to achieving a settlement, based on their consideration of the dismissal. They conceded that the questions asked were consistent with some of those addressed to them during the prior Member Assisted Conciliation by a different Member. They were critical of the conciliation being undertaken in joint session, (distinct from the MAC). However, in the circumstances of the matter, it is anticipated they would have raised questions about discussions or had perceptions (if separate private discussions were held with the parties) and whether this compromised the ability for the Member to move forward to arbitrate the matter. In the joint session at the conciliation, they had a complete understanding of the discussions held with both parties.

[112] Directions and information relevant to the efficient setting of hearing dates has been confirmed. I adopt the views as set out by DP Asbury in Cullen v AEG Ogden (Convex) Pty Ltd 39 in relation to considerations, in moving from conciliation to arbitration:

“I view an application that I not deal with a matter that has been allocated to me as a serious application which I am free to determine in the manner I see fit on the basis of my own consideration of equity and good conscience or consistent with well-established principles about recusal, subject of course, to any appeal which an affected party may make. I can do so by requesting that the matter be allocated to another Member or conduct a hearing to determine the matter. In making a decision about whether or not I should deal with or continue to deal with a particular application, and the manner in which I should make such a decision, the point at which the application that I not deal with the matter is made may be relevant. Other relevant considerations may be the availability of another Member of the Commission to hear the application if it is reallocated and the impact of reallocation on the listed hearing dates and the other parties who may have expended cost and time preparing for a hearing which is scheduled at a particular time. Other parties may also have particular reasons for wanting to maintain the original hearing dates such as the availability of witnesses or the fact that arrangements have been made for employees to be absent from the workplace to participate in a listed hearing. It will often be necessary to hear from other parties before deciding whether or not to accede to a request that I not deal further with an application.”

[113] The process undertaken in the current matter is consistent with the ruling in the Full Bench decision in Amec, as previously set out.

[114] The Applicant’s case is based on inferences drawn from concluding that no determination of any matter related to the application have been made. In this regard, I note this is important to the current consideration, as set out below:

“[42] Finally, in circumstances where Mr Kennedy is clearly aggrieved by my decisions to date, I note that a concern by a party to a matter before a court or tribunal that future decisions will be adverse to them does not, as noted by the High Court in JRL, itself equate to apprehended bias. Specifically, the High Court in JRL observed as follows:

“It needs to be said loudly and clearly that the ground of disqualification is a reasonable apprehension that the judicial officer will not decide the case impartially or without prejudice, rather than that he will decide the case adversely to one party. There may be many situations in which previous decisions of a judicial officer on issues of fact and law may generate an expectation that he is likely to decide issues in a particular case adversely to one of the parties. But this does not mean either that he will approach the issues in that case otherwise than with an impartial and unprejudiced mind in the sense in which that expression is used in the authorities or that his previous decisions provide an acceptable basis for inferring that there is a reasonable apprehension that he will approach the issues in this way. In cases of this kind, disqualification is only made out by showing that there is a reasonable apprehension of bias by reason of prejudgment and this must be ''firmly established": Reg. v. Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group; Watson; Re Lusink; Ex parte Shaw. Although it is important that justice must be seen to be done, it is equally important that judicial officers discharge their duty to sit and do not, by acceding too readily to suggestions of appearance of bias, encourage parties to believe that by seeking the disqualification of a judge, they will have their case tried by someone thought to be more likely to decide the case in their favour.” (Footnotes not included, underlining added)” 40

[115] For these reasons, in accordance with the case authorities as set out, it is determined that there is no proper basis on which I should recuse myself from hearing the Applicant’s unfair dismissal remedy application. The recusal application is therefore dismissed.

[116] The parties will be contacted in due course regarding the further programming of the substantive unfair dismissal application.

[117] I order Accordingly.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

1 Question 3.1 (3) of the Employer’s Form F3.

2 Question 3.2 of the Employer’s Form F3.

3 Paragraph 11, Applicant’s recusal application.

4 Construction, Forestry, Maritime, Mining and Energy Union v Watpac Construction Pty Ltd T/A Watpac Construction [2019] FWCFB 3855.

5 Amec Foster Wheeler Australia Pty Ltd v Communications, Electrical, Electronic, Energy, Information, Postal Plumbing and Allied Services Union of Australia[2021] FWCFB 3191.

6 Construction, Forestry, Maritime, Mining and Energy Union v Watpac Construction Pty Ltd T/A Watpac Construction [2019] FWCFB 3855 at [39].

7 Ibid, at [45].

8 Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337.

9 Ex Parte H (2001) 179 ALR 425.

10 Isbester v Knox City Council [2015] HCA 20 at [23].

11 Isbester v Knox City Council (2015) 320 ALR 432.

12 Construction, Forestry, Maritime, Mining and Energy Union v Watpac Construction Pty Ltd T/A Watpac Construction [2019] FWCFB 3855.

13 Re JRL; Ex parte CLJ (1986) 161 CLR 342 at 352 per Mason J.

14 Jones v Australian Competition and Consumer Commission [2002] FCA 1054 at [100].

15 [2013] FCAFC 80.

16 Re Minister for Immigration and Multicultural Affairs; Ex part AB (2000) 177 ALR 225 at 230; Galea v Galea (19990) 90 NSWLR 263 at 279.

17 See the definition of 'conciliation' in Dispute Resolution Terms: The use of terms in (alternative) dispute resolution published by the National Alternative Dispute Resolution Advisory Council.

18 [2015] FWCFB 3332.

19 Finance Sector Union of Australia v Australian and New Zealand Banking Group Limited [2004] AIRC 255.

20 Re: Clerks Customs Agent (SA) Award [1993] AILR 346.

21 Pacific National (NSW) Pty Limited [2008] AIRCFB 245 at [12].

22 Aaron Cullen v AEG Ogden (Convex) Pty Ltd T/A Brisbane Convention & Exhibition Centre [2019] FWC 6986 at [30].

23 R v Watson; Ex parte Armstrong [1976] HCA 39 (3 August 1976), [(1976) 136 CLR 248; (1976) 9 ALR 551, 561‒565]; cited in Livesey v New South Wales Bar Association [1983] HCA 17 (20 May 1983) at para. 7, [(1983) 151 CLR 288, 293‒294].

24 Dain v Bradley & Grant [2012] FWA 9029 (Booth DP, 29 October 2012) at para. 14; citing British American Tobacco Australia Services Limited v Laurie [2011] HCA 2 (9 February 2011) at para. 104.

25 Re J.R.L. Ex parte C.J.L. [1986] HCA 39 (30 July 1986), [(1986) 161 CLR 342, at p. 352].

26 Ibid.

27 [2016] FWCFB 278.

28 [2013] FCAFC 106.

29 [2003] FCAFC 290.

30 Johnson v Johnson [2000] HCA 48 (7 September 2000) at para. 11, [(2000) 201 CLR 488].

31 Oram v Derby Gem Pty Ltd PR946375 (AIRCFB, Lawler VP, Kaufman SDP, Blair C, 22 July 2004) at para. 110, [(2004) 134 IR 379].

32 [2021] FWCFB 3191.

33 [2019] FWCFB 3855.

34 [2020] FWCFB 3315.

35 Young v Judge Nixon [2008] VSCA 5; Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63; AJH Layers v Careri (2011) 34 VR 236, [22].

36 Aaron Cullen v AEG Ogden (Convex) Pty Ltd T/A Brisbane Convention & Exhibition Centre [2019] FWC 6986 at [30].

37 Applicant’s outline of submissions, dated 15 June 2021, at [16].

38 Oram v Derby Gem Pty Ltd PR946375 (AIRCFB, Lawler VP, Kaufman SDP, Blair C, 22 July 2004) at para. 110, [(2004) 134 IR 379].

39 [2019] FWC 6986 at [35].

40 Kennedy v Qantas Ground Services Pty Ltd T/A Qantas Ground Services Pty Ltd, Qantas Group [2019] FWC 7387 at [42].

Ms Nicola Miles v Services Australia

[2021] FWC 4906

10 AUGUST 2021

DECISION

INTRODUCTION

CONSIDERATION

CONCLUSION