Ross Kennedy v Qantas Ground Services Pty Ltd T/A Qantas Ground Services Pty Ltd, Qantas Group
[2019] FWC 7387
•29 OCTOBER 2019
| [2019] FWC 7387 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Ross Kennedy
v
Qantas Ground Services Pty Ltd T/A Qantas Ground Services Pty Ltd, Qantas Group
(U2017/11691)
DEPUTY PRESIDENT KOVACIC | CANBERRA, 29 OCTOBER 2019 |
Application for relief from unfair dismissal – application for recusal on the ground of apprehended bias – application dismissed.
[1] This decision deals with an application made on 16 June 2019 by Mr Ross Kennedy that I recuse myself from dealing with his unfair dismissal application. This is the fifth in a series of decisions (excluding appeal decisions) 1 regarding Mr Kennedy’s (the Applicant) unfair dismissal application which was lodged on 3 November 2017 alleging that the termination of his employment by Qantas Ground Services Pty Ltd T/A Qantas Ground Services Pty Ltd, Qantas Group (QGS – the Respondent) on 2 November 2017 was unfair.
[2] Mr Kennedy’s recusal application was the subject of a telephone mention and directions hearing on 10 July 2019 and was originally set down to be heard on 8 August 2019. However, the hearing was rescheduled for 14 October 2019 as a result of Mr Kennedy requesting additional time to file his outline of submissions which meant that the application could not be heard until I returned from leave earlier this month.
[3] For the reasons outlined below, Mr Kennedy’s application that I recuse myself from dealing with his unfair dismissal application is dismissed.
The Applicant’s submissions
[4] Mr Kennedy in his submissions stated that his recusal application was based on his ongoing concerns regarding my conduct, including decisions I had made in the past and the associated reasons given, statements and comments which I had made and the decisions and statements which I had published throughout the proceedings thus far in respect of his unfair dismissal application. In particular Mr Kennedy contended that a fair minded lay observer would reasonably apprehend that I would not bring an impartial or unprejudiced mind to determining his unfair dismissal application.
[5] Among other things, Mr Kennedy posited that I had:
• on several occasions demonstrated pre-judgement;
• on other occasions flagrantly and deliberately ignored strong and key evidence such as the four grounds which Mr Hardy of QGS based his decision to terminate Mr Kennedy’s employment on;
• refused to contemplate his contention that Dr Walker’s report should not be admitted as a reliable basis for his termination given the incomplete, false and misleading information provided to him by QGS; and
• consistently refused some of his applications without adequate reasoning or justification.
[6] Mr Kennedy also noted that I did not have legal qualifications.
[7] In his submissions, Mr Kennedy referred to a number of authorities, including Christopher Budd v Australian Federal Police 2, Application by Metropolitan Fire & Emergency Services Board3, Ebner v Official Trustee in Bankruptcy (Ebner)4 and Webb v The Queen (Webb) 5.
[8] More specifically, Mr Kennedy relied on 71 grounds in support of his recusal application. For ease of reference I have grouped the 71 grounds into the following three broad categories (these headings will be used below in considering the 71 grounds relied upon by Mr Kennedy):
• grounds relating to a number of my interlocutory decisions regarding Mr Kennedy’s unfair dismissal application – 53 grounds fall into this category, with the overwhelming majority of the grounds related to my decision of 10 July 2019 (the July 2019 decision) 6 which dealt with Mr Kennedy’ applications for orders requiring persons to attend the Fair Work Commission (the Commission), QGS’ application for permission to be represented by a lawyer and QGS’ objections to aspects of the evidentiary material filed by Mr Kennedy in support of his unfair dismissal application;
• grounds relating to case management/conduct of the case – 12 grounds fall into this category. The grounds raise issues which include:
comments made by me in various proceedings related to Mr Kennedy’s various applications, e.g. my characterisation of Mr Kennedy’s use of the words “small nondescript firm” to describe MJSP Consulting Management (the firm engaged by QGS to investigate Mr Kennedy’s bullying complaints) as unnecessary in circumstances where Mr Kennedy disputed QGS’ submission that the description was “inflammatory and disparaging”,
my alleged disregard for the decision in Application by SB 7,
my failure to offer Mr Kennedy an opportunity to read a folder of material provided by QGS at the determinative conference while I offered QGS a short adjournment at the hearing of 14 June 2019 to read a document which it advised it had not read, and
my failure to hold a hearing to determine whether or not Mr Kennedy had been bullied at work whilst employed by QGS; and
• grounds relating to various complaints made by Mr Kennedy to the President of the Commission about me – 6 grounds fall into this category. Mr Kennedy’s complaints relate to:
a number of matters in respect of the conference held on 30 April 2018 to deal with his applications for orders to produce (complaint of 15 May 2018 – the matters included a concern that Mr Kennedy had been denied procedural fairness at the conference),
terminology used by me in the telephone mention and directions hearing of 10 July 2019 regarding Mr Kennedy’s request for QGS’ to produce certain policy documents (i.e. a reference to primary and secondary policy documents),
his recusal application and several other issues (complaint of 11 July 2019),
the July 2019 decision being circulated to the parties minutes before the abovementioned telephone mention and directions hearing (complaint of 11 July 2019),
comments allegedly made by me at the hearing of 14 June 2019 regarding QGS’ objections to aspects of Mr Kennedy’s evidentiary material (complaint of 11 July 2019), and
either my decision (as set out in the July 2019 decision) to refuse Mr Kennedy’s application for an order requiring Ms Sonia Millen (formerly of Herbert Smith Freehills who are acting for QGS in this matter) to attend or “the failure of the Commission to appoint Commissioners with fundamental training and experience in the law” (complaints of 26 July 2019 – it is not clear from Mr Kennedy’s written submissions which of these two complaints he is referring to).
[9] Recurring and/or key themes in Mr Kennedy’s submissions regarding the 71 grounds included that:
• in deciding to grant QGS permission to be legally represented in the proceedings related to Mr Kennedy’s unfair dismissal application (as set out in the July 2019 decision) I proposed legal complexities on behalf of QGS and relied upon a misconceived claim of anticipated contested facts and extensive cross-examination;
• in the July 2019 decision I failed to provide adequate reasons or any reasons whatsoever for allowing QGS’ objections to elements of Mr Kennedy’s evidentiary material;
• in the July 2019 decision I disregarded the fact that no determination had been made by the Commission as to whether or not Mr Kennedy had been terminated for making bullying complaints;
• I had disregarded aspects of Mr Kennedy’s submissions, e.g. Mr Kennedy’s contention that two of the grounds relied upon by Mr Hardy for terminating his employment were inextricably linked to the bullying related complaints he had made during his employment with QGS;
• I continued to “blatantly disregard” the incomplete, false and misleading evidence provided by QGS to Dr Walker in the context of his fitness for duty examination of Mr Kennedy;
• I had denied Mr Kennedy procedural fairness in the conference of 30 April 2018;
• the July 2019 decision regarding QGS’ objections to Mr Kennedy’s evidentiary material in several places referred to the wrong documents; and
• I had unreasonably refused Mr Kennedy’s application of 26 September 2017 for a conference or hearing to be convened in respect of his application for an order to stop bullying.
[10] In his oral submissions Mr Kennedy largely reiterated aspects of his written submissions, emphasising in particular that I had refused to accept that two of the grounds relied upon by Mr Hardy to terminate his employment related to his bullying complaints while a third related to his performance and that he was unable to determine whether this was due to bias, incompetence or lack of training. Mr Kennedy also posited that I had deliberately disregarded his submissions and email of 29 May 2019 regarding performance issues (the email is set out at paragraph [12] below). Beyond that, Mr Kennedy submitted that:
• I should recuse myself because of my membership of Qantas’ Frequent Flyer Program and Chairman’s Lounge on the basis that those two memberships provided an appearance of bias, adding that he considered that I accumulated frequent flyer points and privileges as a “quid-pro-quo” for membership;
• the Commission needed to determine whether or not he was bullied at work whilst employed by QGS, adding among other things that it was incumbent on the Commission to determine that issue in dealing with his unfair dismissal application and that I was wrong in deciding not to admit material related to his alleged bullying; and
• I had demonstrated bias in referring to his 1 October 2018 outline of submissions in my decision of 10 July 2019, 8 adding that at no stage had I relied on that outline of submissions in other interlocutory decisions regarding his unfair dismissal application.
[11] Mr Kennedy also refuted aspects of QGS’ submissions.
[12] On 17 October 2019 Mr Kennedy (as he foreshadowed at the hearing on 14 October 2019) forwarded an email to the Commission and QGS which dealt with his submissions regarding performance issues. I set out aspects of the email below:
“Dear Deputy President Kovacic,
I write to you to follow-up discussions held at Hearing held on Monday, 14 October 2019 in Canberra in relation to my application for you to recuse on the basis of apprehended basis.
You will recall that the hearing was attended by Michael O’Neil representing the Respondent Qantas Ground Services Pty Ltd (QGS) and Jonathan Forbes, a legal practitioner.
In this email sent today, I specifically refer to 5 claims made throughout your Decision of 20 July 2019 that objections made by QGS for the Fair Work Commission to exclude persons to appear (Simon Brown) and evidence that I have filed should be allowed on the basis that you have wrongly accepted that issues relating to my performance are not relevant.
I have argued to you, and raised with you in my application for you to recuse and elsewhere, that allegations made by QGS in respect to my performance are relevant for the unfair dismissal proceedings including the substantive hearing. In particular, I took considerable time to specifically clarify and qualify with you a claim made in my Outline of Submissions of 1 October 2018 in respect to my performance as a basis for termination.
You have evidently deliberately disregarded the evidence that I have provided to you in my application for you to recuse, and your disregarding of the evidence is a ground of apprehended bias for you to immediately recuse yourself from any further involvement in these proceedings.
I stated to you at the hearing that I would provide you with a copy of an email that I sent to you Wednesday, 29 May 2019 (7:52 AM) which clarifies the performance issue which I believe that you have disregarded. A copy is provided below.
Also at the Hearing, I read out aloud selected statements as I had made in my Outline of Submissions claiming that my performance was an issue that you must take into consideration given the grounds that Mr Hardy had relied upon to terminate my employment. You have evidently disregarded these statements and I have noted these statements again in this email to you below.
DP Kovacic’s claim 1:
Simon Brown (page 8)
‘Mr Kennedy’s Outline of Submissions sets out as an agreed fact that his dismissal did not relate to his performance during his employment with QGS’.
DP Kovacic’s claim 2:
Lot B Documents 26, 27, 30, 31, 40, 41, 43-48, 63-80 and 82-120 (page 23)
‘Decision: QGS’ objection to these documents is sustained on the basis of relevance. Further, as previously mentioned, Mr Kennedy’s Outline of Submissions sets out as an agreed fact that his dismissal did not relate to his performance during his employment with QGS. The documents will therefore not be received into evidence’.
DP Kovacic’s claim 3:
Lot J Documents 41-44 (page 27)
‘Decision: QGS’ objection to these documents is sustained on the basis of relevance. Further, as previously mentioned, Mr Kennedy’s Outline of Submissions sets out as an agreed fact that his dismissal did not relate to his performance during his employment with QGS. The documents will therefore not be received into evidence’.
DP Kovacic’s claim 4:
Lot J Documents 48-51 (page 27)
‘Decision: QGS’ objection to these documents is sustained on the basis of relevance given that the documents relate primarily to Mr Kennedy’s performance. As previously mentioned, Mr Kennedy’s Outline of Submissions sets out as an agreed fact that his dismissal did not relate to his performance during his employment with QGS. The documents will therefore not be received into evidence’.
DP Kovacic’s claim 5:
Lot L Document 29 (page 28)
‘Decision: QGS’ objection to these documents is sustained on the basis of relevance. Further, as previously mentioned, Mr Kennedy’s Outline of Submissions sets out as an agreed fact that his dismissal did not relate to his performance during his employment with QGS. The documents will therefore not be received into evidence’.
The 29 May 2019 email sent to you is as follows:
“Dear Deputy President Kovacic,
I write to clarify a claim made by the Respondent’s Michael O’Neil at yesterday’s hearing to determine my application for orders for persons to appear at the substantive hearing.
At a point in yesterday’s proceedings during my application for Debra Denne of Qantas Airways Limited to appear at the substantive hearing given misleading and unsupported statements made by Ms Denne in respect to my performance as outlined in her 12 January 2017 letter to Dr Kipling Walker, Mr O’Neil raised ‘Agreed facts’ point 2(ii) on page 9 of my Outline of Submissions dated 1 October 2018 filed with the Fair Work Commission (FWC).
A copy of ‘Agreed facts’ as outlined in my Outline of Submissions is provided below.
To make clear with the FWC and Mr O’Neil, Point 2(ii), being ‘that the dismissal of the Applicant does not relate to the unsatisfactory performance of the Applicant during his employment [s.387(e) of FW Act]’, pertains only to the letters of Brett Hardy of 27 September 2017 and 2 November 2017 which terminated my employment at Qantas Ground Services Pty Ltd.
In particular, the statement made at Point 2(ii) that my dismissal did not relate to the unsatisfactory of my performance pertains only to the four grounds as outlined by Mr Hardy at a) thru to d) of Mr Hardy’s 27 September 2017 that enabled him to conclude that I was unable to complete the inherent requirements of the role.
Further, the statement made at 2(ii) does not, I believe, preclude me from claiming unfairness in my termination given performance issues that were unfairly raised, for example, by QGS and QAL during my employment, in correspondence provided to the FWC by Ashley Stephenson on 10 June 2016, in correspondence provided by QGS’ Peter Katsiris to Dr Geetha Matthew and in correspondence provided Dr Walker by Ms Denne on 12 January 2017.
It is completely consistent for me to claim that my dismissal by Mr Hardy did not relate to my performance in my Outline of Submissions and simultaneously claim that I was not granted procedural fairness in my termination by QGS and QAL unfairly raising performance concerns with me. Such claims made by me include that Dr Walker’s report should be deemed as unreliable given misleading and unsupported statement made by Ms Denne to Dr Walker on 12 January 2017.
I advise that I will continue to claim unfairness from my termination from the Respondent raising performance issues in the manner that it did.
Agreed facts
12. The following has previously been agreed to by the Applicant and the Respondent in these proceedings and should not be relevant factors;
(i) that the reasons for the dismissal of the Applicant do not relate to the conduct of the Applicant during his employment [s.387(a) of FW Act]; and
(ii) that the dismissal of the Applicant does not relate to the unsatisfactory performance of the Applicant during his employment [s.387(e) of FW Act].
Kind Regards
Ross Kennedy’
I further list below statements that I made in my Outline of Submissions relating to the performance issue that you further disregarded.
…”
[13] On 18 October Mr Kennedy sent the following further email to the Commission:
“Dear Deputy President Kovacic,
I write to you to follow-up discussions held at Hearing held on Monday, 14 October 2019 in Canberra in relation to my application for you to recuse on the basis of apprehended basis.
You will recall that the hearing was attended by Michael O'Neil of Respondent Qantas Ground Services Pty Ltd and Jonathan Forbes.
In this email, I further wish to highlight to you your apprehended bias and incompetence as ground for you to step aside.
I specifically refer to 5 claims that you made throughout your Decision of 20 July 2019 that objections made by QGS for the Fair Work Commission to exclude persons to appear (Simon Brown) and evidence that I have filed should be allowed on the basis that you have (wrongly) accepted that issues relating to my performance are not relevant.
The 5 claims are listed below.
[The 5 claims are not set out here as they are in identical terms to those set out above in Mr Kennedy’s email of 16 October 2019]
…
At the same time in which you have concluded on 5 separate occasions that you consider that my performance was not a relevant consideration for the proceedings going forward including not relevant for the unfair dismissal remedy, at [55] on page 24, you claim in your decision as follows;
‘Decision: I am willing to receive Document 7 (Statutory declaration by Mr Chalker dated 6 March 2018) but only to the extent that it deals with the performance and conduct of Mr Kennedy. It will be open to QGS to make submissions as to what, if any weight should be accorded to that aspect of Document 10’.
It should be clear to you given your statement made above in relation to Mr Chalker's Affidavit that you have contradicted yourself on the performance issue.
It is further evidence to you that you are biased and have demonstrated ongoing incompetence in these proceedings and that you must recuse yourself immediately.”
[14] Also on 18 October 2019 Mr Kennedy sent the following email to the Commission:
“Dear Deputy President Kovacic
I write to follow-up discussions held at Hearing on Monday, 14 October 2019 held for you to hear my application for you recuse in the proceedings.
As you will recall, we discussed at the Hearing attended by the Respondent's Mr Michael O'Neil and Mr Forbes of Counsel that you had claimed in your 10 July 2019 Decision as a basis to allow objections made by the Respondent on evidence that I had filed as follows;
‘As the Applicant had claimed to Mr Hardy, the bullying complaints made by the Applicant during his employment were inextricably linked to the reasons put forward by Mr Hardy to dismiss the Applicant.’
You also described a reference that I had made in my Outline of Submissions dated 1 October 2018 as 'fleeting'. The Statement is provided below.
‘[51] With regard to that contention, I note firstly that Mr Kennedy has not provided any further detail in his submissions to support that contention, nor has he provided any evidentiary material to support the contention. More importantly in the context of considering QGS’ objections to aspects of Mr Kennedy’s evidentiary material, I note that determining that issue does not require the Commission to determine whether or not Mr Kennedy was bullied at work whilst employed by QGS. While it is patently clear from the proceedings to date that Mr Kennedy vehemently maintains that he was bullied at work whilst employed by QGS and is strongly desirous of a finding to that effect, I note that in his Outline of Submissions Mr Kennedy contends that’:
As further evidence of a case of apprehended bias and that you are incompetent, I draw your attention to Lot D documents that clearly demonstrates that your claim that I have "provided any further detail in his submissions to support that contention, nor has he provided any evidentiary material to support the contention" is completely false and comes from a position of bias.
I refer you to the following statements made in Lot D attached;
Page 6 [28]; and
Page 15 [65 - 72].”
[15] In response to a request from me for clarification of the references to Lot D in the above email on 28 October Mr Kennedy provided the document attached in full at Attachment A to this decision.
The Respondent’s submissions
[16] QGS opposed Mr Kennedy’s recusal application, submitting among other things that:
• a reasonable apprehension of bias arises when a fair-minded lay observer might reasonably apprehend that a judge may not bring an impartial mind to the resolution of the question which he or she is required to decide;
• in the Commission, a reasonable apprehension of bias may be enlivened when a member has some direct or indirect interest in the case before them, has published or acted in a way that gives rise to a reasonable apprehension of bias, has some direct or indirect relationship, experience or contact with anyone involved in the case or has some knowledge of extraneous information;
• the bulk of Mr Kennedy’s submissions merely took issue with a number of outcomes in the proceedings which had not fallen in his favour, adding that adverse outcomes were not grounds to substantiate an apprehended bias allegation; and
• the application had no proper basis.
[17] QGS in its written submission drew on several authorities, including the decisions in Dain v Sam Bradley and Robert Grant 9 (citing British American Tobacco Australia Services Limited v Laurie10), Webb and Re J.R.L.; Ex parte C.J.L.(JRL)11.
[18] At the hearing on 14 June 2019, QGS submitted among other things that:
• the issue to be determined in respect of Mr Kennedy’s recusal application was whether Mr Kennedy had pointed to anything which would cause a fair-minded lay observer to form the view that I could not bring an impartial mind to the question of whether or not Mr Kennedy was fairly dismissed;
• a fair-minded lay observer was the person sitting at the back of the hearing room as opposed to Mr Kennedy;
• Mr Kennedy brought a subjective rather than an objective mindset to this matter, highlighting that Mr Kennedy’s submissions were framed from his perspective (e.g. setting out how he felt matters had been dealt with) as opposed to the perspective of an independent and objective third party;
• the authorities regarding an apprehension of bias require that an apprehension must be reasonable and based on a real possibility of bias and not some fanciful suggestion, noting that the principles regarding apprehension of bias were most recently summarised by the Full Bench in Construction, Forestry, Maritime, Mining and Energy Union v Watpac Construction Pty Ltd T/A Watpac Construction (Watpac) 12;
• the grounds relied upon by Mr Kennedy in support of his recusal application did not support the proposition that I could not bring an impartial mind to the proceedings;
• of the 71 grounds relied upon by Mr Kennedy 50 went to the July 2019 decision, 7 concerned my decision making generally, 7 related to how I had managed the matter, 4 were personal and 2 or 3 grounds went to other factors, describing the vast majority of the grounds as a “collateral attack” on the July 2019 decision and the way I had run the case;
• the Full Bench decisions regarding Mr Kennedy’s applications to appeal several of my interlocutory decisions regarding his unfair dismissal application, particularly the Full Bench decision regarding Mr Kennedy’s application to appeal the July 2019 decision, were a complete answer to those grounds relied upon by Mr Kennedy in support of his recusal application which related to those interlocutory decisions; and
• a Commission member should not readily recuse themselves from dealing with a matter so as to avoid encouraging “member shopping” and having regard to fairness to other parties involved in the proceedings.
[19] With reference to my membership of Qantas’ Frequent Flyer Program and Chairman’s Lounge, QGS:
• submitted, drawing on Ebner, that an interest of that kind or even a more direct pecuniary interest did not automatically disqualify a member from dealing with an application, adding that it would only do so if the test of apprehended bias was met;
• contended that a fair-minded lay observer would not form the view that such an interest met the test for apprehended bias;
• in terms of what the test might be, the observations of the Full Bench in its decision 13 regarding Mr Kennedy’s applications for permission to appeal the July 2019 decision in so far as that decision dealt with Mr Kennedy’s concern that the July 2019 decision was infected with apprehended bias on the basis of my membership Qantas’ Frequent Flyer Program and Chairman’s Lounge was a sensible approach and one which QGS relied on; and
• stated that there was no suggestion that membership involved a quid-pro-quo, i.e. an expectation of a Commission member doing anything in return, adding that a fair-minded lay observer would have no expectation that a Commission member would have to do anything as a result of membership.
[20] In respect of Mr Kennedy’s emails to the Commission of 17 and 18 October 2019, QGS submitted by email on 22 October that the supplementary material provided by Mr Kennedy in his emails primarily took issue with the July 2019 decision. QGS also noted that Mr Kennedy’s appeals against that decision were dismissed by the Full Bench in its decision of 6 September 2019, 14 highlighting that the Full Bench described his applications to appeal the July 2019 decision as “patently without merit”15. In short, QGS maintained that Mr Kennedy’s recusal application should be dismissed as he had not satisfied the relevant test.
Consideration of the issues
[21] The decision in Watpac set out the principles relating to disqualification on the ground of apprehended bias as follows:
“[29] The principles relating to disqualification on the ground of apprehended bias are … found in Ebner v Official Trustee in Bankruptcy and were usefully summarised by Middleton J in Kirby v Centro Properties Limited (No 2) as follows:
‘The principles respecting disqualification for apprehended bias represent a balance between two competing policy considerations, namely the maintenance of public confidence in the judicial system, by ensuring that the public perceive that cases are decided only by reference to the evidence before the court, and the need for judges to discharge their duties unless good reason is shown.
The apprehension of bias principle is stated in Ebner v The Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 at [6] where Gleeson CJ, McHugh, Gummow and Hayne JJ said (subject to qualifications relating to waiver and necessity):
“... a judge is disqualified if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide.”
The question is one of possibility (real and not remote), not probability. If there is an appropriate apprehension of bias, then the judge must disqualify himself or herself, no matter what case management considerations arise in the efficient and effective determination of a proceeding.
In Ebner, the majority in the High Court affirmed that the application of this test involves two steps. First, there must be identification of what it is that might lead a judge to decide the particular questions before him or her other than on the merits. Second, having identified the factors or circumstances that might influence a departure from meritorious decision-making, it is “no less important” to articulate the “logical connection” between those factors and the fear that the judge might not apply proper judicial method (that is, merits based decision-making) in resolving the controversy on the facts and the law (at [8]).
The mere fact that a judge has made a particular finding on a previous occasion does not necessarily give rise to an apprehension of bias. Nevertheless, in some situations previous findings may lead to disqualification and “what kind of findings will lead to relevant apprehension of bias must depend upon their significance and nature”: Gascorv Ellicott [1997] 1 VR 332 at 348 (Ormiston JA); see also at 342 (Tadgell JA with whom Brooking JA agreed); and see Cabcharge 5 at [34].
However, as the majority observed in British American Tobacco Australia Services Ltd v Laurie [2011] HCA 2; (2011) 242 CLR 283, the lay observer is the “yardstick”, and in this regard:
“... the lay observer might reasonably apprehend that a judge who has found a state of affairs to exist, or who has come to a clear view about the credit of a witness, may not be inclined to depart from that view in a subsequent case. It is a recognition of human nature” (at [139]). (Emphasis in original.)
The application of these principles does not change merely because a judge expressly acknowledges at the hearing of the first proceeding that different evidence may be led in the later proceeding, casting new light on the facts he or her had found in the previous proceeding. This is assumed to occur in any event. Such an acknowledgment does not necessarily remove the impression created by reading the earlier judgment that the views there stated might influence the determination of the same issue in a later judgment: see Laurie at [145] per Heydon, Kiefel and Bell JJ. [Emphasis in reported judgement]
These principles must be carefully applied. It has been said that: “...disqualification flows from a reasonable apprehension that the judge might not decide the case impartially, rather than that he will decide the case adversely to a party”: Cabcharge at [32]; Re JRL; Ex parte CJL [1986] HCA 39; (1986) 161 CLR 342 at 352 (Mason J).
Needless to say, disqualification of a judge by reason of prejudgment must be “firmly established”: Cabcharge at [25]; Re JRL at 352. Judges should not accede too readily to recusal by reason of apprehended bias.
To apply these principles in any given case is a matter of judgment and evaluation depending on the exact circumstances. Undoubtedly, the question of an apprehension of bias requires one to focus on the issues that the judge is called upon to decide - see eg British American Tobacco Australia Ltd v Gordon (2007) NSWSC 109 at [97] per Brereton J. No strict approach should be taken in identifying the legal and factual issues. The issues before a judge sought to be disqualified may well be different in some respects to those issues determined in the earlier proceeding. At the core of the inquiry is an examination of the legal and factual issues on foot and the extent to which previous findings may, in the eyes of the fair-minded lay observer, impact on the judge’s ability to decide the matter other than on its merits.
Because the test of apprehended bias involves “a fair-minded lay observer” who is observing a judge, the assumed characteristics of each need to be considered.
A judge is trained and is required “to discard the irrelevant, the immaterial and the prejudicial”: see Vakauta v Kelly (1988) 13 NSWLR 502 at 527 (McHugh JA), adopted in Vakauta v Kelly [1989] HCA 44; (1989) 167 CLR 568 at 584-585 (Toohey J); Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488 at [12] (Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ); and Laurie at [80] (Gummow J); and at [140] (Heydon, Kiefel and Bell JJ).
As to the “reasonable observer”, in Laurie at [145], Heydon, Kiefel and Bell JJ affirmed that a reasonable observer would note the possibility of the evidentiary position changing between the previous proceeding and the subsequent proceeding.
In R v Burrell (2007) 175 A Crim R 21; [2007] NSWCCA 79 at [11], McClellan CJ at CL (with whom the other members of the New South Wales Court of Criminal Appeal agreed) stated that:
“The ordinary fair minded person understands that in the exercise of the judicial function it will be necessary, from time to time, for a judge to reconsider matters which have previously been considered or which may have been pronounced upon by that particular judge.”
In Sengupta v Holmes [2002] TLR 351, at [35]-[37], Laws LJ (Jonathan Parker LJ agreeing) stated that the fair-minded observer would recognise that a professional judge would be capable of departing from an earlier expressed opinion.
However, as I have indicated, applying these principles will be a matter of judgment and evaluation in the circumstances. The application of these principles to particular facts in earlier authorities, concerning as they do, the particular circumstances that may or may not have lead a judge to be disqualified, are not to be elevated to the “principles” to be applied. Nor is the application of the principles in any given case to be used as a gloss upon those principles. As the authorities demonstrate, including Laurie, the principles are relatively well established, but in the application of these principles reasonable minds may differ as to the result.’ (Endnotes not included)
[22] A more succinct summary of the principles applicable to an application for recusal based upon a reasonable apprehension of bias was set out by the Full Bench in Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) 16 as follows:
“[12] The principles applicable to an application for recusal based upon a reasonable apprehension of bias were comprehensively stated in the judgment of Gleeson CJ and McHugh, Gummow and Hayne JJ in the High Court decision in Ebner. In summary, as relevant to the CFMMEU’s recusal application:
• the governing principle is that a decision-maker is disqualified if a fair-minded lay observer might reasonably apprehend that the decision-maker might not bring an impartial mind to the resolution of the question the decision-maker is required to decide;
• deciding whether a decision-maker might not bring an impartial mind to the resolution of a question that had not yet been determined is a question of possibility (real and not remote), not one of probability or prediction;
• the application of the apprehension of bias principle requires two steps: (1) identification of what it is said might lead the decision-maker to decide a case other than on its legal and factual merits; and (2) an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits;
• only once these two steps are undertaken can the reasonableness of the asserted apprehension of bias be assessed; and
• it is not possible to state in a categorical form the circumstances in which a decision-maker may properly decline to sit, since relevant circumstances will vary.” 17 (Endnotes not included)
[23] I will deal separately with each of the three broad categories of grounds relied upon by Mr Kennedy in support of his recusal application and his contentions regarding my membership of Qantas’ Frequent Flyer Program and Chairman’s Lounge.
Interlocutory decision grounds
[24] As previously noted, 53 of the grounds relied upon by Mr Kennedy in support of his recusal application relate to my interlocutory decisions regarding his unfair dismissal application. Before dealing with the specifics of Mr Kennedy’s submissions regarding those grounds I will deal initially with some factual aspects regarding Mr Kennedy’s contentions.
[25] At ground 55-63 of his submissions, Mr Kennedy contends inter alia that “[t]he bias of DP Kovacic is demonstrated by DP Kovacic sustaining the objection(s) to the wrong document.” In the light of Mr Kennedy’s contention I have double checked the documents referred to in the July 2019 decision and satisfied myself that the decision refers to the correct documents. However, as stated at the hearing of 14 October 2019 regarding Mr Kennedy’s recusal application, in double checking the document references it became apparent to me that the July 2019 decision did not deal QGS’ objections to various documents contained in Lot J (Part B) of Mr Kennedy’s evidentiary material. Subject to QGS confirming that it maintains its objections to those documents, a decision in respect of those objections will be issued in due course having regard to the parties’ submissions (both written and oral) regarding the relevant documents.
[26] Further, Mr Kennedy contends at ground 71 that I refused his application for Ms Tracey Silvester to appear at the substantive hearing of his unfair dismissal application. However, as noted at paragraph [12] of the July 2019 decision “[o]n 24 May 2019, Mr Kennedy sent an email to the Commission withdrawing his application for orders to attend in respect of the following seven persons – Mr Angelos, Dr Hosegood, Ms Maloney, Mr O’Neil, Ms Silvester, Ms Sirimanotham and Ms Zovac.” (Underlining added)
[27] With particular regard to the other grounds relied upon by Mr Kennedy that relate to my various interlocutory decisions to date in this matter, I do not consider that a fair-minded lay observer might reasonably apprehend that I would not consider Mr Kennedy’s unfair dismissal application impartially when regard is had to the following:
• that other than the July 2019 decision, I have issued only one other decision relating to Mr Kennedy’s unfair dismissal application after 1 October 2018 when he filed his outline of submissions, with that decision being issued on 13 February 2019 (the February 2019 decision) 18 and concerning the determinative conference held on 23 November 2018;
• the February 2019 decision, given the questions which the Commission was asked to determine via the determinative conference, did not necessitate any reference to Mr Kennedy’s outline of submissions;
• the July 2019 decision acknowledged at paragraph [52] that “the Commission is likely to have to determine whether Mr Kennedy’s allegations of bullying and harassment were a factor in QGS’s decision to terminate his employment”;
• an objective reading the July 2019 decision and earlier interlocutory decisions in their entirety indicates that those decisions clearly set out the reasons for my decisions, with permission to appeal not granted in respect of any of the applications made by Mr Kennedy to appeal my decisions;
• a recusal application is not an opportunity to re-agitate previously determined issues;
• as noted in the July 2019 decision Mr Kennedy has filed an application requesting that the Commission “determine if four Statements made by Brett Hardy Head of Qantas Ground Services Pty Ltd as provided as grounds of termination and as included on page 1 of his letter to the Applicant dated 27 September 2019 at a) through to d) are excerpts from report of Dr Kipling Walker dated 27 March 2017 at pages 11 13” (as per application), with one of the outcomes of the telephone mention and directions hearing on 10 July 2019 being that consideration of that application would be deferred until after QGS has filed its outline of submissions and evidentiary material in respect of Mr Kennedy’s unfair dismissal application;
• Mr Kennedy’s characterisation of the Commission’s task in respect of his unfair dismissal application as outlined in his outline of submissions, i.e.
“As concluded in CSL Limited T/A CSL Bearing v Chris Papaiaonnou (C2017/6287) (CSL) and Jetstar Airways Pty Limited v Ms Monique Neeteson-Lemkes (C2013/5863) (Jetstar) in a dismissal relating to incapacity of an employee to perform the inherent requirements of a role, s.387 of the FW Act requires the FWC to consider and make findings as to whether or not at the time of dismissal the Applicant suffered from the alleged incapacity based upon the medical and lay evidence. This should be the task of the Fair Work Commission in these proceedings.” 19;
• at both the telephone mention and directions hearing on 10 July 2019 and the hearing on 14 October 2019 regarding Mr Kennedy’s recusal application the Commission highlighted to Mr Kennedy that it was open to him at any stage to make further application(s) for either orders for persons to attend or for the production of documents;
• my decision of 14 May 2018 which states that it is open to Mr Kennedy to make further applications for orders to produce at any time, including once the parties’ respective outlines of submissions and evidentiary material regarding had been filed 20; and
• the question of whether or not there was a valid reason for the termination of Mr Kennedy’s employment by QGS is an issue to be considered in the context of the substantive hearing of Mr Kennedy’s unfair dismissal application.
[28] As to Mr Kennedy’s emails of 17, 18 and 28 October 2019, there is nothing in the emails which I consider would cause a fair-minded lay observer to reasonably apprehend that I would not consider Mr Kennedy’s unfair dismissal application impartially. In particular, I note that:
• in his email of 29 May 2019 Mr Kennedy maintains that his dismissal by Mr Hardy was not related to performance and that this did not preclude him from simultaneously claiming that he was not granted procedural fairness as a result of QGS unfairly raising performance issues with him;
• my decision to receive Mr Chalker’s witness statement in so far as it dealt with the issue of Mr Kennedy’s performance and conduct had regard to Mr Kennedy’s submission that Mr Chalker’s statement (among others) “directly contradict the opinions of Dr Walker in respect to the Applicant’s capacity to take directions, work productively as a team player and participate in performance review process and in this context ... are relevant for the issues to be determined by DP Kovacic at the substantive hearing” 21; and
• the document at Attachment A to this decision does little more than reiterate in places Mr Kennedy’s contention that he was dismissed as a result of having made bullying complaints.
[29] Further, I would observe that questions of whether Mr Kennedy’s bullying complaints were a factor in his dismissal and whether or not Mr Kennedy was bullied at work whilst employed by QGS are two separate and distinct issues. More importantly in the context of this case, determining the latter issue is not a prerequisite to determining the former issue. It is clear from the Fair Work Act 2009 that a threshold issue in determining an application for an order to stop bullying is whether or not “the worker has been bullied at work by an individual or a group of individuals” 22. However, the matter before me is Mr Kennedy’s unfair dismissal application and not his bullying application which is currently on hold pending determination of his unfair dismissal application. As such, contrary to Mr Kennedy’s contention, in determining his unfair dismissal application the Commission does not need to determine whether or not he was bullied at work whilst employed by QGS.
Case management/conduct of the case grounds
[30] With regard to the various grounds which relate to the case management/conduct of the case, I will again deal initially with some factual aspects of Mr Kennedy’s contentions.
[31] Firstly, Mr Kennedy contends at ground 65 that it took me “almost 4 months to circulate my reasons for decision in respect to the Determinative Conference held on 25 October 2018.” However, as can be seen from the following extract from the February 2019 decision several aspects of this contention are inaccurate:
“[7] The determinative conference was held on 23 November 2018 ... The determinative conference concluded with the Commission reserving its decision.
[8] On 29 November 2018 Mr Kennedy sent an email to the Commission indicating that he wished to provide a response to the determinative conference. The Commission subsequently advised that while not necessary it was willing to receive Mr Kennedy’s response and that it would provide QGS with the opportunity to respond. Mr Kennedy provided his written submission on 12 December 2018 followed by a further email the following day. QGS provided its written response on 17 December 2018.” 23
[32] Further, Mr Kennedy contends at ground 69 that I “unreasonably refused” his application of 26 September 2017 for a conference or hearing to be held in respect of his application for an order to stop bullying. 24 However, an examination of the Commission’s electronic file regarding Mr Kennedy’s bullying application indicates that:
• in the light of Mr Kennedy’s request of 26 September 2017 the Commission on 28 September 2017 listed Mr Kennedy’s bullying application for conference on 4 October 2017, with that conference concluding inter alia on the basis that his bullying application would be listed for a report back conference on 27 October 2017;
• the report back conference was subsequently rescheduled for 17 November 2017 as a result of advice received from Mr Kennedy and QGS on 25 and 26 October 2017 respectively;
• on 8 November 2017 Mr Kennedy wrote to the Commission in the following terms:
“On 2 November 2017, I was advised that my employment had been terminated.
On 3 November 2017, I filed under s.394 of Fair Work Act 2009 an Unfair Dismissal Remedy at Fair Work Commission counter at Canberra.
Given the matter has moved from anti-bullying jurisdiction to the unfair dismissal jurisdiction at FWC and a separate mediation on the unfair dismissal has been set down for 23 November 2017, I would anticipate that there would be no need to hold the listing for 17 November 2017.”;
• also on 8 November 2017 QGS advised the Commission that it agreed with Mr Kennedy’s assessment that there was no longer a need for the report back conference on 17 November 2017; and
• against that background, the Commission cancelled the conference.
[33] As to the other grounds relied upon by Mr Kennedy which relate to case management/conduct of the case, I do not consider that a fair-minded lay observer might reasonably apprehend that I would not consider Mr Kennedy’s unfair dismissal application impartially when regard is had to the following:
• the audio transcript of the hearing of 28 May 2019 (Mr Kennedy’s ground 7 refers to the hearing of 14 June 2019) in which I highlighted the importance of directions issued by the Commission in circumstances where Mr Kennedy requested that the hearing of QGS’ objections to aspects of his evidentiary material be deferred to a later date despite the notice of listing issued on 10 April 2019 clearly stating that QGS’ objections were to be heard on 28 May 2019;
• the fact that I ultimately agreed to Mr Kennedy’s request;
• the audio transcript of the hearings of 28 May and 14 June 2019 (in respect of grounds 6, 8 and 10 relied upon by Mr Kennedy);
• the July 2019 decision which states at paragraph [52] that “... the Commission is likely to have to determine whether Mr Kennedy’s allegations of bullying and harassment were a factor in QGS’s decision to terminate his employment” (this goes to ground 9 relied upon by Mr Kennedy);
• the fact that I was willing to receive Mr Kennedy’s response to the determinative conference after my decision had been reserved (see paragraph [31] above) – this provided Mr Kennedy with an opportunity to make any submissions which he believed he was unable to make at the determinative conference of 23 November 2018 (this goes to ground 50 relied upon by Mr Kennedy);
• as noted in the February 2019 decision the documents in the folder tabled by QGS at the determinative conference on 23 November 2018 were all in Mr Kennedy’s possession, having either been provided to him in accordance with orders to produce issued by the Commission on 14 May 2018 or having been provided by him to Dr Walker on 17 February 2017 25(this also goes to ground 50 relied upon by Mr Kennedy);
• the extract set out below from the Full Bench decision of 8 August 2018 26 regarding Mr Kennedy’s application for permission to appeal my decision of 14 May 2018 (my decision concerned Mr Kennedy’s applications for orders for the production of documents – as noted by the Full Bench27 in its decision Mr Kennedy contended among other things in his grounds of appeal, as he also does in ground 51 of his recusal application submissions, that he was denied procedural fairness at the conference of 30 April 2018 where his applications were considered)
“[26] There is no basis to conclude that Mr Kennedy was denied procedural fairness in relation to his application for orders to produce, or the discussion of his application at the conference on 30 April 2018. The first and second grounds in the notice of appeal are without substance and we reject them.” 28; and
• the fact that Mr Kennedy’s bullying application is currently on hold pending determination of his unfair dismissal application, noting that one of the pre-requisites for making an order – i.e. that “there is a risk that the worker will continue to be bullied at work by the individual or group” 29 does not currently exist (this goes to grounds 66-69 relied upon by Mr Kennedy).
The grounds related to the Applicant’s complaints about me
[34] With regard to the various complaints that Mr Kennedy has made to the President about me, it is not clear to me the basis on which Mr Kennedy relies on those complaints, i.e. whether the fact that he has made complaints about me is a basis for an apprehension of bias or whether the matters he complains about give rise to an apprehension of bias.
[35] If it is the former, I do not consider that a fair-minded lay observer might reasonably apprehend that I would not consider Mr Kennedy’s unfair dismissal application impartially because of his complaints, in circumstances where I have expressed no views regarding the complaints and have no role in responding to them.
[36] To the extent that it is the latter, I do not consider that a fair-minded lay observer might reasonably apprehend that I would not consider Mr Kennedy’s unfair dismissal application impartially when regard is had to the following:
• the previously set out extract from the Full Bench decision of 8 August 2018 30 regarding Mr Kennedy’s application for permission to appeal my decision of 14 May 2018 (see the second last dot point at paragraph [33] above);
• the audio transcript of the hearings of 14 June and 10 July 2019 (the audio transcript goes to two of the complaints made about me by Mr Kennedy on 11 July 2019);
• the July 2019 decision which states at paragraph [52] that “... the Commission is likely to have to determine whether Mr Kennedy’s allegations of bullying and harassment were a factor in QGS’s decision to terminate his employment” (the extract from the decision goes to Mr Kennedy’s complaint of 11 July 2019 in which he contends that I stated at the hearing of 14 June 2019 that I saw my role was to prevent him from ventilating the bullying complaints he made);
• the July 2019 decision in so far as it sets out the reasons as to why I declined to issue an order requiring Ms Millen to attend;
• the fact that none of the issues canvassed at the telephone mention and directions hearing of 10 July 2019 concerned issues determined in the July 2019 decision
the four issues canvassed were the scheduling of Mr Kennedy’s recusal application, Mr Kennedy’s application for the Commission to “determine if four Statements made by Brett Hardy Head of Qantas Ground Services Pty Ltd as provided as grounds of termination and as included on page 1 of his letter to the Applicant dated 27 September 2019 at a) through to d) are excerpts from report of Dr Kipling Walker dated 27 March 2017 at pages 11 13”, an update of QGS’ search for documents which Mr Kennedy had requested and Mr Kennedy’s request to have two further documents admitted as part of his evidentiary material;
• that at both the telephone mention and directions hearing on 10 July 2019 and the hearing on 14 October 2019 regarding Mr Kennedy’s recusal application the Commission highlighted to Mr Kennedy that it was open to him at any stage to make further application(s) for either orders for persons to attend or for the production of documents; and
• my decision of 14 May 2018 which as previously noted states that it is open to Mr Kennedy to make further applications for orders to produce at any time, including once the parties’ respective outlines of submissions and evidentiary material regarding had been filed 31
The Applicant’s submissions regarding my membership of the Qantas’ Frequent Flyer Program and Chairman’s Lounge
[37] In respect of Mr Kennedy’s submissions regarding my membership of the Qantas’ Frequent Flyer Program and Chairman’s Lounge, when pressed at the hearing as to how these memberships might cause me to do other than adopt an impartial approach to the determination of his unfair dismissal application Mr Kennedy responded “it’s the appearance.” As previously mentioned, Mr Kennedy also submitted that he considered that I accumulated frequent flyer points and privileges as a “quid-pro-quo” for membership.
[38] As stated in CFMMEU the application of the apprehension of bias principle requires two steps: (1) identification of what it is said might lead the decision-maker to decide a case other than on its legal and factual merits; and (2) an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits. On this point, the High Court majority in Ebner observed as follows:
“The bare assertion that a judge (or juror) has an "interest" in litigation, or an interest in a party to it, will be of no assistance until the nature of the interest, and the asserted connection with the possibility of departure from impartial decision making, is articulated. Only then can the reasonableness of the asserted apprehension of bias be assessed.” 32
[39] The High Court majority in Ebner also stated as follows:
“In each case, however, the question must be how it is said that the existence of the "association" or "interest" might be thought (by the reasonable observer) possibly to divert the judge from deciding the case on its merits. As has been pointed out earlier, unless that connection is articulated, it cannot be seen whether the apprehension of bias principle applies. Similarly, the bare identification of an "association" will not suffice to answer the relevant question. Having a mortgage with a bank, or knowing a party's lawyer, may (and in many cases will) have no logical connection with the disposition of the case on its merits.” 33
[40] Mr Kennedy has not articulated how my membership of the Qantas’ Frequent Flyer Program and Chairman’s Lounge might cause me to determine his unfair dismissal application on other than an impartial basis. There is no “quid-pro-quo” as asserted by Mr Kennedy as the benefits attached to my memberships are the same as any other equivalent member enjoys, e.g. access to a lounge when travelling. I therefore do not accept Mr Kennedy’s contention that a fair-minded lay observer might reasonably accept that I might not bring an impartial mind to the determination of his unfair dismissal application as a result of these memberships.
[41] I also note and agree with the comments of the Full Bench in its decision of 6 September 2019 34 regarding Mr Kennedy’s application to appeal the July 2019 decision (in his appeal grounds Mr Kennedy contended that the disclosure by me on 20 August 2019 of my membership of the Qantas’ Frequent Flyer Program and Chairman’s Lounge increased the likelihood that my decision contained bias35). Specifically, the Full Bench determined as follows:
“[32] The basis upon which the Decision is said to have been “infected with apprehended bias” has not been specified other than by reference to the alleged “conflicts” concerning the Deputy President’s disclosure of his membership of the Qantas frequent flyer program and Chairman’s Lounge. There appears to be an assumption on Mr Kennedy’s part that these are matters which would automatically disqualify the Deputy President from hearing his case and necessitate the conclusion that any decision the Deputy President has made in the matter has been affected by an apprehension of bias. The proposition that any particular interest on the part of a court or tribunal member will be automatically disqualifying was rejected by the High Court majority in Ebner v Official Trustee in Bankruptcy. The appeal grounds do not articulate any contention as to the basis upon which the reasonable observer might consider that the Deputy President’s membership of the Qantas frequent flyer program and Chairman’s Lounge (or any prior non-disclosure of such) might possibly divert him from deciding Mr Kennedy’s case on its merits. The facts are that Commission members are frequently required to travel throughout Australia, and Qantas is the dominant player in a very restricted domestic aviation market. This makes some form of association with Qantas difficult to avoid. Knowledge of these matters may reasonably be attributed to the ordinary fair-minded layperson. Without more, there cannot be an arguable case that the Decision was vitiated by an apprehension of bias.” 36 (Endnotes not included).
[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.” 37 (Footnotes not included, underlining added)
[43] For all the above reasons, and having particular regard to the principles applicable to an application for recusal based upon a reasonable apprehension of bias, I do not consider that the grounds relied upon by Mr Kennedy, when considered either individually or collectively, have the result that a fair-minded lay observer might reasonably accept that I might not bring an impartial mind to the determination of his unfair dismissal application. Mr Kennedy’s application that I recuse myself from dealing with his unfair dismissal application is therefore dismissed.
Next steps
[44] Mr Kennedy’s unfair dismissal application will now be listed for a mention and/or directions hearing to set a timetable for dealing with his application. Also, as previously noted, subject to QGS confirming that it maintains its objections to a number of the documents contained in Lot J (Part B) of Mr Kennedy’s evidentiary material, a decision in respect of its objections will be issued in due course.
Appearances:
R. Kennedy on his own behalf.
J. Forbes of Counsel with M. O’Neil for the Respondent.
Hearing:
2019
Canberra
October 14.
Printed by authority of the Commonwealth Government Printer
<PR713713>
Attachment A
TABLE 1 | |||||
[51] With regard to that contention, I note firstly that Mr Kennedy has not provided any further detail in his submissions to support that contention, nor has he provided any evidentiary material to support the contention. | |||||
Submission | Submission page | Original Submission page | Paragraph | Details provided in Submission | |
Lot D Annexures Termination documents Submission- Grounds of appeal to Karen Moloney, 9 November 2017 | 8 | 6 | 28(i) Dot point 1 | “...It is not fair and just for Mr Hardy to terminate Mr Kennedy’s employment based upon a projection or ‘guestimate’ made by Dr Walker that Mr Kennedy will be bullied if returned to the workplace and a further projection that Mr Kennedy’s will become depressed due to the expected bullying. Besides, Dr Walker’s projection here is based upon inaccurate and irrelevant information made available to him” | |
Lot D Annexures Termination documents Submission- Grounds of appeal to Karen Moloney, 9 November 2017 | 8 | 6 | 28(i) Dot point 2 | “...It is not fair and just for Mr Hardy to terminate Mr Kennedy for making bullying complaints that may have been made in the past or into the future. It is further not fair and just to terminate Mr Kennedy on this termination ground given that Mr Hardy had refused to provide Mr Kennedy with the meeting notes and Survey results in order to rebut Dr Walker’s claim that the bullying of Mr Kennedy was Mr Kennedy’s perception only” | |
Lot D Annexures Termination documents Submission- Grounds of appeal to Karen Moloney, 9 November 2017 | 10 | 8 | 28(iii) Dot point 4 | “..it is not fair and just for Mr Hardy to terminate Mr Kennedy’s employment based upon a claim that Qantas’s ‘Standards of Conduct Policy’ or Fair Work Act 2009 (Cth) or other laws would not effectively deal with any further bullying of Mr Kennedy if returned to the workplace” | |
Lot D Annexures Termination documents 1st interim Submission to retain employment to Brett Hardy, 19 October 2017 | To be provided | “...I believe that if I am not provided with the requested material by you, the Final Submission to you outlining grounds for you not to terminate my employment may not be determined in a just, fair and reasonable manner given that the grounds you are seeking to terminate my employment are inextricably linked to the bullying that I claim to have suffered at the workplace since June 2013. You are refusing to provide me with the requested information on the basis of the following” | |||
Lot D Annexures Termination documents 1st interim Submission to retain employment to Brett Hardy, 19 October 2017 | 44 | 6 | 19 | “...Mr Hardy’s refusal to provide me with the requested information means I believe that he is not providing me with procedural fairness in terms of my having all information and data available to complete the Final Submission. I make this claim given that the grounds of termination put forward by Mr Hardy in the termination letter are inextricably linked to the bullying allegations that I have raised at CBR Port since August 2013 including the allegations raised at the meetings of 30 June 2015, 11 February 2016 and 21 May 2016. I first raised bullying of me with Ms Hilder (Operations Manager, CBR Port) with a 3-page letter on 11 August 2013 in respect to bullying of me by co-worker Mr Darren Phillips” | |
Lot D Annexures Termination documents 1st interim Submission to retain employment to Brett Hardy, 19 October 2017 | 46 | 8 | 24 | “...With respect, it does not appear that Mr Hardy has taken the information requests made of him on 29 September 2017 in a wholly serious manner. The requested information I would anticipate would be easily accessible without unreasonably drawing down on Qantas resources and not prejudicing Qantas in any significant way. I find the grounds that Mr Hardy has put forward for refusing to provide me with the requested information as unreasonable particularly given that the basis upon which he is considering terminating my employment is directly related to the bullying that I believe and maintain that I experienced. The bullying that I suffered over the 3-year period was my firm reality. I believe that Mr Hardy is under an obligation to provide me with the requested material and I ask for Mr Hardy to reconsider his refusal. As Mr Hardy would be aware, he is taking away my economic means and livelihood if he decides to terminate my employment” | |
Lot D Annexures Termination documents 1st interim Submission to retain employment, 19 October 2017 | 53 | 15 | 65 | “...Given Termination Ground 2 and Ground 5 as outlined above, it is clearly evident that an inextricable link exists between the Grounds that Mr Hardy is relying upon to consider terminating my employment and the bullying complaints that I have made to Qantas including the complaints that I made at meetings of meetings of 30 June 2015, 11 February 2016 and 21 May 2016. Dr Walker outright rejects the bullying of me as my reality stating that it is my perception only. For Dr Walker to make this conclusion is wrong and unreasonable given that Ms Denne had failed to provide Dr Walker with a copy of my 5 October 2016 letter that I provided Commissioner Hampton outlining my objections to the manner in which the investigation was conducted. It is also wrong and unreasonable for Dr Walker to come to this conclusion given that he failed to ask adequate questions and promote sufficient discussion of the bullying of me during the consultation and there is no evidence that he took into consideration in his report the evidentiary material that I left with him in Folder 1 detailing the bullying incidents recorded in real-time. Dr Walker makes a reference to Folder 1 in his report at the top of page 6. In my 6 February 2017 report provided to Ms Denne, in respect to the adequacy of the questions and promotion of discussion of the bullying of me during the consultation, I stated as follows at [36]” | |
Ross Kennedy
28 October 2019
1 [2018] FWC 1818, [2018] FWC 2689, [2019] FWC 837 and [2019] FWC 4819
2 [2018] FWCFB 6095
3 [2014] FWC 3117
4 [2000] HCA 63, 205 CLR 337
5 (1994) 181 CLR 41
6 [2019] FWC 4819
7 [2014] FWC 2014
8 [2019] FWC 4819
9 [2012] FWA 9029
10 (2011) 242 CLR 283, [2011] HCA 2
11 (1986) 161 CLR 342
12 [2019] FWCFB 3855
13 [2019] FWCFB 6094 at [32]
14 Ibid
15 Ibid at [42]
16 [2019] FWCFB 214
17 Ibid at [12]
18 [2019] FWC 837
19 Outline of Submissions filed by the Applicant on 1 October 2018 at paragraph 4 on page 3
20 [2018] FWC 2689 at [20]
21 Applicant’s response to Respondent’s objections to evidence filed on 23 May 2019 Filed by the Applicant 7 June 2019 at page 18
22 s.789FF(1)(b)(i) of the Fair Work Act 2009
23 [2019] FWC 837 at [7] and [8]
24 AB2016/437
25 [2019] FWC 837 at [23]
26 [2018] FWCFB 4552
27 Ibid at [12]
28 Ibid at [26]
29 s.789FF(1)(b)(ii) of the Fair Work Act 2009
30 [2018] FWCFB 4552
31 [2018] FWC 2689 at [20]
32 Ibid at [8]
33 Ibid at [30]
34 [2019] FWCFB 6094
35 Ibid at 13 of Attachment A, 19 of Attachment B and 10 of Attachment C
36 [2019] FWCFB 6094 at [32]
37 (1986) 161 CLR 342 at 352
3
20
0