Ross Wunungmurra v East Arnhem Regional Council

[2019] FWC 1465

[2019] FWC 1465

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Ross Wunungmurra
v
East Arnhem Regional Council
(U2018/3803)

COMMISSIONER BISSETT MELBOURNE, 7 MARCH 2019

Application for recusal on grounds of apprehended bias.

[1] On 9 November 2018 I issued a decision in which I found that Mr Ross Wunungmurra (Mandi) 1 was unfairly dismissed from his employment by East Arnhem Regional Council (Council).2 In that decision I said, as to remedy:

[90] The parties have made brief submissions with respect to remedy. Mr Wunungmurra seeks reinstatement and this is opposed by Council.

[91] My preliminary (but not concluded) view is that reinstatement is not inappropriate. I am aware that Mr Wunungmurra lives in a relatively remote community and am not of the view that the Commission has adequately detailed submissions to reach a concluded view on this point. For this reason further directions shall be issued in relation to remedy.

[2] On the same day I issued directions in relation to the remedy that might be awarded to Mr Wunungmurra given my findings in relation to his dismissal.

[3] Those directions required Mr Wunungmurra to file his submissions and evidence by 7 December 2018 and the Council to file its submissions and evidence by 21 December 2018. The matter was subsequently listed for hearing on remedy on 19 February 2019.

[4] On 13 June 2018 I granted permission to the Council to be represented pursuant to s.596 of the Fair Work Act 2009. At the time permission was granted the Council was represented by Mr Sheldon Smith of Latitude 12, a human resources (HR) company based in Darwin. Mr Wunungmurra was represented by Ms Dianne Yali of United Voice. Mr Wunungmurra did not require permission to be represented.

[5] On 18 January 2019 Ms Tegan Harris of MinterEllison wrote to Ms Yali on instruction of the Council and put forward an offer of settlement. Ms Yali apparently responded to Ms Harris that she was unable to respond to MinterEllison as it did not yet have permission from the Fair Work Commission (Commission) to represent the Council. MinterEllison responded that it had been engaged by Council to have settlement discussions and that permission from the Commission was not relevant to that. Not receiving a response MinterEllison apparently wrote to a more senior officer of United Voice and asked if the Council offer had been conveyed to Mr Wunungmurra.

[6] On 25 January 2019 MinterEllison wrote to the Commission and sought assistance with settlement discussions. In that correspondence MinterEllison indicated that a “without prejudice” offer had been made to Mr Wunungmurra.

[7] Later that day United Voice wrote to the Commission. In that correspondence United Voice disputed that MinterEllison had permission to represent Council. It therefore relied on the decision in Stephen Fitzgerald v Woolworths Limited 3to dispute the right of MinterEllison to represent the Council in any aspect of the matter. In that correspondence to the Commission United Voice also said:

On 18 January 2019. Ms Harris email Ms Dianne Yali (Industrial Officer, United Voice), with an offer to put to Mr Wunungmurra which included (inter alia), giving Mr Wunungmurra the “right to resign” – even though there is a Fair Work Commission decision that Mr Wunungmurra was unfairly dismissed [refer to Ross Wunungmurra v East Arnhem Regional Council [2018] FWC 6808]. [sic]

[8] On 31 January 2019 MinterEllison filed a Form F1 with the Commission in which it sought that I should recuse myself from further dealing with the matter for reasons of apprehended bias.

[9] I had taken United Voice’s objection to MinterEllison representing the Council to be an application that I should revoke permission previously granted to the Council pursuant to s.596 of the FW Act. The application that I recuse myself also goes to the determination of that question.

[10] United Voice indicated that it would not press its application that permission be revoked for the purpose of dealing with the recusal application.

Authorities

[11] Council submits that the principles relevant to a consideration of an application for recusal are well settled. The test for apprehended bias was described by the High Court in Ebner v Official Trustee in Bankruptcy 4 (Ebner) as follows:

Whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question that the judge was required to decide. That is the test to be applied… and it reflects the general principle which is to be applied to problems of apprehended bias, whether arising from interest, conduct, association, extraneous information or some other circumstance. 5

[12] The application of that test is a two-step process:

The apprehension of bias principle admits of the possibility of human frailty. Its application is as diverse as human frailty. Its application requires two steps. First, it requires the identification of what it is said might lead a judge…to decide a case other than on its legal and factual merits. The second step is no less important. There must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits. The bare assertion that a judge… 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. 6 [Underlining added]

[13] In Webb v The Queen 7 Deane J identified four main categories of apprehended bias as being disqualification by interest, disqualification by conduct, disqualification by association and disqualification by extraneous information. On the latter point he said that this “consists of cases where knowledge of some prejudicial but inadmissible fact or circumstance gives rise to the apprehension of bias”.

[14] United Voice rely on the decision in Kirby v Centro Properties Limited (No 2) 8where Middleton J said:

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. 9

[15] Further, in Re: J.R.L.; Ex parte C.J.L 10 United Voice submits the High Court cautioned as follows:

Disqualification is only made out by showing that there is a reasonable apprehension of bias by reason of prejudgement and this must be “firmly established”. [Footnotes omitted]

[16] United Voice says that the High Court further said:

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.

Submissions

For Council

[17] Council submits that United Voice disclosed to the Commission essential terms of the settlement offer made by it to Mr Wunungmurra. In this respect Council submits that the first part of the two-step process in Ebner is made out in that, by the identification of an offer that was made, I have had access to “extraneous information” which is prejudicial and inadmissible in relation to determining the matter of remedy.

[18] Council also submits that, having had access to that information a fair-minded observer might reasonably consider that I might not bring an impartial mind to the determination of the application to revoke permission already granted to the Council.

[19] Council submits that:

It would be reasonable for a fair-minded lay observer to consider that the Commission might be unable to put out of her mind the email correspondence from United Voice…that appears to undercut the Commissioner’s decision, and that the Respondent could be prejudiced by any negative inferences that might be drawn from the information.

For Mr Wunungmurra

[20] United Voice submits that, contrary to the submissions of Council the “right to resign” could not be construed as “essential terms of the settlement offers” as it was a term (singular) and not “terms” and because, in the decision of the Commission in relation to Mr Wunungmurra’s application, the Commission found that Mr Wunungmurra had been unfairly dismissed such that an offer of a “right to resign” is superfluous to a consideration of whether the remedy should consist of compensation or reinstatement.

[21] United Voice submits that knowledge of the offer cannot in any way satisfy the test in Ebner because the Commission has already decided that Mr Wunungmurra was unfairly dismissed. Knowledge of the offer therefore could not prejudice Council by any negative inferences that might be drawn.

[22] United Voice submits that, to accept the submissions of Council, would result in a Commission member who decided if a dismissal was unfair unable to deal with remedy if this was to be dealt with at a later date.

[23] United Voice further submits that the Council has not raised any issue of apprehended bias occasioned by me attempting to conciliate settlement discussions as it sought.

Consideration

[24] The issues raised by the Council go to two matters – first whether, by being made aware of the “right to resign” offer made by it I have access to information that would otherwise be inadmissible in a hearing to determine remedy for Mr Wunungmurra such that a fair-minded observer might consider I would not determine remedy on its merits. The second issue is if, being aware of the without prejudice offer, I may draw some negative inference about the Respondent that a fair-minded observer might consider would influence my determination of the application to revoke permission to represent the Council.

[25] In order to determine whether the application that I recuse myself be granted it is necessary to understand the matter it is intended be heard and determined. In the decision in relation to Mr Wunungmurra’s application for relief from unfair dismissal it was found:

•  that Mr Wunungmurra engaged in misconduct in that he incorrectly claimed time that he had worked when he had, in fact, not done so 11 but did not consider that it provided a valid reason for dismissal12;

•  I was not satisfied that Mr Wunungmurra had been notified of the reason for dismissal prior to being advised his employment was terminated; 13 and

•  I did not consider Mr Wunungmurra had been afforded procedural fairness; 14

[26] For these reasons and others explicitly mentioned in the decision of 9 November 2018 I found that Mr Wunungmurra’s dismissal was harsh and unjust and he was, therefore, unfairly dismissed.

[27] The obligation on the Commission, having found an applicant to have been unfairly dismissed, is to determine remedy. Remedy consists of reinstatement 15 or, in circumstances where the Commission considers reinstatement is not appropriate, compensation “in lieu of reinstatement.”16 In determining the amount of compensation the matters to be considered, and approach to those matters, is well settled. No aspect of the consideration of remedy goes to whether the applicant, alone or in conjunction with other things, should be considered to have “resigned”. The factual outcome of an application for unfair dismissal is either the applicant was unfairly dismissed or the application should be dismissed.

[28] In these circumstances it is difficult to understand how knowledge by the Commission that an offer was made to Mr Wunungmurra after having been found to have been unfairly dismissed could lead to an apprehension of bias. It is difficult to understand how the knowledge of an offer (or part of an offer) that bears no relationship to the statutory considerations or the possible statutory outcomes of that consideration could lead any fair-minded observer to think that it would affect the ability of the decision-maker to decide the case on anything other than its merits.

[29] For these reasons I am not satisfied that Council has made a case that a fair-minded observer might reasonably apprehend that the Commission as presently constituted might not bring an impartial mind to the determination of remedy for Mr Wunungmurra in circumstances where he has been found to have been unfairly dismissed.

[30] The second matter that Council says may be effected by knowledge of the without prejudice offer is the application by United Voice to revoke permission for Council to be represented by a lawyer or paid agent.

[31] It cannot be that knowledge that an offer was made is the issue of concern to Council. It would be highly unusual for any member of the Commission to think that settlement discussions, at any stage of unfair dismissal proceedings (including following a decision on the dismissal but prior to remedy being decided), are not occurring. Council’s concern can only be that knowledge of the content of the offer may lead a fair-minded observer to think that the Commission as presently constituted might not bring an unbiased mind to the matter at hand.

[32] It is well established that the determination of whether permission should be given to a party to be represented by a lawyer or paid agent is a two-step process. First, the Commission must be satisfied that one of the requirements in s.596(2)(a)-(c) have been met. Second, having reached the necessary satisfaction the Commission must determine the exercise of its discretion as to whether to grant permission.

[33] Having granted permission, the Commission does not have the power to determine who may then be the representative. 17

[34] Whatever the appropriate consideration might be in determining the application to revoke permission (no submissions or findings have yet been made on that matter) it is reasonable to posit that they could not be contrary to the requirements necessary in deciding whether to grant permission.

[35] Council has not articulated how knowledge of some or all of the without prejudice offer it instructed be made to Mr Wunungmurra might affect the determination of that application to revoke permission except that the Commission might draw some negative inference from the information 18. It is difficult to understand what or how such a negative inference might be drawn.

[36] As is clear from Ebner, the second step in the process is important in determining if an application for apprehended bias is to be made out. In this case I am not satisfied that the knowledge of an offer in settlement discussions will affect the determination of the issue of revocation of permission that has already been granted.

[37] I am therefore not satisfied that Council has established that a fair-minder observer might reasonably apprehend that I would not bring an impartial mind to the resolution of the matters currently before the Commission.

Conclusion

[38] Accordingly I do not consider it necessary to recuse myself from further dealing with the application.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

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 1   The Applicant is known as Ross Wunungmurra or sometimes as Ross Mandi.

 2   [2018] FWC 6808.

 3   [2017] FWCFB 2797.

 4 (2000) 205 CLR 337 at [33] per Gleeson CJ, McHugh, Gummow and Hayne JJ.

 5 Ibid at [33].

 6 Ibid at [8].

 7 (1994) 181 CLR 41.

 8 [2011] FCA 1144 .

 9   Ibid at para. 12.

 10 (1986) 161 CLR 342.

 11   [2018] FWC 6808 at [54].

 12 Ibid at [57].

 13 Ibid at [63].

 14 Ibid at [72].

 15   Fair Work Act 2009, s.391.

 16   Ibid, s.392(1).

 17   New South Wales Bar Association v Brett McAuliffe and Anor.. [2014] FWCFB 1663 at [24].

 18   Council submissions, paragraph 23.