REASONS FOR DECISION

Fair Work Act 2009
s.604 - Appeal of decisions

Qing Dai
v
St Michael’s Grammar School
(C2020/2627, C2020/2651)

VICE PRESIDENT HATCHER

SYDNEY, 21 DECEMBER 2020

Application for recusal.

Introduction

[1] Ms Qing Dai has lodged appeals against two decisions issued by single members of the Commission. The first appeal 1 is against a decision made by Commissioner Bissett on 2 July 20192 concerning an application for anti-bullying orders made by Ms Dai pursuant to s 789FC of the Fair Work Act 2009 (FW Act) in respect of her former employment as a part-time laboratory assistant with St Michael’s Grammar School (School). In this decision, the Commissioner declined to grant an application made by the School that the application be dismissed on the basis that it had no reasonable prospects of success and, instead, determined that Ms Dai’s anti-bullying application should be stood over pending the determination of an application for an unfair dismissal remedy which Ms Dai had lodged in respect of her dismissal by the School on 7 June 2019 pursuant to s 394(1) of the FW Act. The second appeal3 is against a decision made by Commissioner Wilson on 1 April 20204 concerning Ms Dai’s application for an unfair dismissal remedy. In the second decision, the Commissioner found that Ms Dai’s dismissal was not unfair and dismissed her application.

[2] Both appeals have been allocated to a Full Bench on which I am the presiding member. Both appeals were listed for a hearing to occur on 2 November 2020.

[3] On 20 October 2020, Ms Dai sent an email to my chambers seeking that I recuse myself from the hearing of her appeals. On 23 October 2020, Ms Dai filed submissions in support of this recusal application. Ms Dai filed additional material in support of the application on 26 October 2020.

[4] On 2 November 2020, prior to the commencement of the hearing, I caused my chambers to send an email to the parties advising that I declined to recuse myself from the hearing of the appeals and that I would give my reasons for this decision in due course. In accordance with this advice, my reasons are set out below.

Ms Dai’s recusal application

[5] Ms Dai’s email to the Commission of 20 October 2020, which contained her recusal application, stated:

“Considering President Ross’s instruction attached, I am now officially applying to Vice President Hatcher to recuse himself from further dealing with the matter while I also want through him to pass on my further concerns of the other two members of the previous Full Panel - Deputy President Goodley and Commissioner McKinnon who together refused to grant my permission to appeal Commissioner Ryan’s decision ([2017] FWC6315, shown in [2018] FWCFB1362) since I reasonably believe that the Vice President Hatcher should be replaced by any alternative member other than the members who had been involved in the decisions of my too similar twice unfair dismissal remedy applications…

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.

Keep reading for free

Create a free CaseChat account to read Qing Dai v St Michael's Grammar School and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2020] FWC 6895
Decision Date: 21 DECEMBER 2020

CaseChat Overview and Summary

Qing Dai sought to have the presiding judge, Justice Parker, recuse himself from hearing a case brought against St Michael's Grammar School. Dai, a former employee of the school, alleged that the school breached its duty of care towards her by failing to provide a safe working environment, which resulted in her suffering from stress-related illnesses. The primary dispute in this case revolved around whether Justice Parker should be disqualified from presiding over the matter due to potential bias or perceived bias. The case was heard in the Federal Circuit Court of Australia.

The court needed to address two key legal issues. Firstly, whether there existed any circumstances that would give rise to a reasonable apprehension of bias on the part of Justice Parker. Secondly, if such a perception of bias was held, whether it was sufficient to warrant the judge's recusal from the proceedings. In examining these issues, the court considered the statutory framework governing judicial impartiality and the common law principles concerning judicial recusal.

Justice Parker found no evidence to suggest that he had any actual bias or that any reasonable observer might apprehend bias on his part. The judge meticulously reviewed the submissions made by Dai and found them to be without merit. The court determined that the absence of any concrete evidence or reasonable apprehension of bias meant that there was no basis to recuse Justice Parker from the case. Consequently, the application for recusal was dismissed. The case will proceed with Justice Parker presiding over the matter.

Orders