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…

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.

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Details

Case: [2021] FWC 4906
Decision Date: 10 AUGUST 2021

CaseChat Overview and Summary

Ms Nicola Miles filed an application for unfair dismissal remedy against Services Australia. The primary dispute in this case revolved around the validity and fairness of Ms Miles' dismissal from her employment, as well as the subsequent refusal by Services Australia to provide certain relief or reinstatement. The case was heard in the Federal Circuit and Family Court of Australia. The court was tasked with determining whether Ms Miles' dismissal was indeed unfair and if Services Australia's actions warranted any remedy under the Fair Work Act 2009.

The court had to decide on two main legal issues: firstly, whether there was a valid basis for Ms Miles' dismissal, and secondly, whether the refusal of relief by Services Australia was justified. Additionally, the court considered an application for recusal by Ms Miles, who argued that the judge might have an apprehended bias against her. The court needed to assess the validity of this application and decide if it warranted the judge's recusal.

In its reasoning, the court found that the dismissal of Ms Miles was carried out in accordance with the relevant employment laws and was therefore valid. Furthermore, the refusal of relief by Services Australia was deemed justified under the circumstances presented. Regarding the application for recusal, the court concluded that there was no evidence to support the claim of apprehended bias. Consequently, the application for the judge's recusal was dismissed. The court maintained its original decision to deny the unfair dismissal remedy, ruling that Ms Miles' dismissal was not unfair and that no further relief was warranted.

As a result of the court's decision, the application for unfair dismissal remedy was dismissed, and the application for the judge's recusal was also dismissed. The court's ruling upheld the validity of Ms Miles' dismissal and the actions of Services Australia in not providing further relief.

Orders