Samantha Bolden v Lyndoch Living Inc T/A Lyndoch Warrnambool Inc

[2014] FWC 6652

[2014] FWC 6652

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Samantha Bolden
v
Lyndoch Living Inc T/A Lyndoch Warrnambool Inc
(U2013/15240)

COMMISSIONER BISSETT MELBOURNE, 29 SEPTEMBER 2014

Application for recusal on grounds of apprehended bias - relief from unfair dismissal.

[1] On 23 May 2014 I issued a decision in Bolden v Lyndoch Living 1 in which I found that Ms Bolden had been unfairly dismissed. I ordered the reinstatement of Ms Bolden as follows:

[206] I will order that Ms Bolden undergo immediate training in Elder Abuse and Restraint Free policies and the Code of Professional Conduct for Nurses. Such training is to be organised and completed within four weeks of the making of the order. Ms Bolden will not be able to return to work until such training is satisfactorily completed. Should she fail to satisfactorily complete the training the Respondent may apply for the order I make to be varied on the grounds that reinstatement is no longer an appropriate remedy.

[205] I will order that Ms Bolden be appointed to an equivalent position but not in the high care unit of the Respondent’s business. She should be placed in an appropriate position where the demands of the residents are not as onerous as in the unit in which she was working when the incident occurred. Her terms and conditions of employment should be no less favourable then they were prior to her dismissal.

[2] The Respondent (Lyndoch) subsequently appealed this decision. The Full Bench on appeal said:

[50] We are satisfied that the failure to alert the parties, and the Appellant in particular, to the possibility of reinstatement qualified on the basis that the Respondent should not work in a high care area constituted a denial of natural justice and an error of jurisdiction on the part of Commissioner Bissett. As a result we grant permission to appeal, uphold the appeal in this respect and quash the decision of the Commissioner in respect of remedy and set aside the consequential order giving effect to that decision.

[51] As we have not found any other appellable error by the Commissioner nor disturbed her findings, conclusion and decision that the dismissal was unfair, we think the best course is to remit the matter to Commissioner Bissett to hear evidence and submissions on the question of whether reinstatement of the Respondent into a position not involving work in a high care area is appropriate and determine a remedy having regard to such evidence and submissions, together with the evidence and submissions already before her. 2

[3] On 8 September 2014 I issued Directions for the filing of materials in relation to that matter remitted to me by the Full Bench.

[4] In the Directions I stated that:

[3] Following a finding that Ms Bolden was unfairly dismissed I am of the  view that reinstatement is appropriate and that Ms Bolden should to be appointed to an equivalent position to that she held prior to dismissal. I am also of the view however that Ms Bolden should not be placed in the high care unit of Lyndoch Living Inc T/A Lyndoch Warrnambool (Lyndoch).

[5] I then sought submissions in respect of the issue of remedy for Ms Bolden.

[6] Lyndoch has now sought that I recuse myself on the grounds of apprehended bias. Ms Bolden opposes the application of Lyndoch and sought to be heard on the application.

The law

[7] The law as it applies to the consideration of disqualification on the grounds of bias is well settled. As Lyndoch sets out in its submissions 3:

First, it requires an applicant to identify what it is said might lead a member of the Commission to decide a case other than on its legal or factual merits.

The second step is to identify the logical connection between the matter and the feared deviation from the course of deciding a case on its merits.

The above considerations must be assessed having regard to whether a fair-minded lay observer might reasonably apprehend that the member of the Commission might not bring an impartial mind to the resolution of the question the Commission is required to decide. A fair-minded observer is deemed to be a person who is informed of the relevant facts of the case and sufficiently knowledgeable so as to bring a rational and reasonable assessment to bear on the question whether the member of the Commission might not bring an impartial mind to the case.

Whilst there is some overlap between the concepts of actual bias and apprehended bias, apprehended bias does not require the complainant to establish anything about the subjective motives, attitudes, predilections or purposes of the decision-maker. It is enough to show that 'in all the circumstances the parties or the public might entertain a reasonable apprehension that [the decision-maker] might not bring an impartial and unprejudiced mind to the resolution of the question involved in it’

[Footnotes omitted]

[8] In British American Tobacco Australian Services Limited v Laurie 4 French CJ considered the principles applicable to the consideration of an appearance of bias. He concluded:

44 The fact that a judge has expressed a strongly worded view at the outset of a hearing does not prevent characterisation of that view as provisional. In such a case the reasonable apprehension of bias must be "firmly established" before prohibition will issue. Sometimes the line of judgment is "ill-defined". On the other hand, a gratuitous statement in a judgment given in one case adverse to a person not involved in that case against whom a prosecution was pending, was sufficient to disqualify the judge who made the statement from sitting on an appeal arising out of the prosecution.

45 The scrutiny required of claims of bias based on prior findings by a decision-maker was emphasised, in relation to administrative decisions, by Gaudron and McHugh JJ in Laws v Australian Broadcasting Tribunal. Their Honours, after referring to R v Australian Stevedoring Industry Board, Angliss and Shaw, said:

"When suspected prejudgment of an issue is relied upon to ground the disqualification of a decision-maker, what must be firmly established is a reasonable fear that the decision-maker's mind is so prejudiced in favour of a conclusion already formed that he or she will not alter that conclusion irrespective of the evidence or arguments presented to him or her." (emphasis added)

The requirement that an apprehension of bias, based on judicial conduct, be "firmly established" is consistent with the most recent decisions of this Court and gives content to the requirement that an apprehension of bias, in that class of case, be reasonable.

46 Much debate in this appeal turned on the extent of the knowledge attributable to the fair-minded lay observer for the purpose of determining whether that observer would reasonably apprehend bias. That knowledge does not extend to a knowledge of the law that ordinary experience shows not to be the case. The question was discussed in Johnson v Johnson, where the plurality said:

"Whilst the fictional observer, by reference to whom the test is formulated, is not to be assumed to have a detailed knowledge of the law, or of the character or ability of a particular judge, the reasonableness of any suggested apprehension of bias is to be considered in the context of ordinary judicial practice. The rules and conventions governing such practice are not frozen in time. They develop to take account of the exigencies of modern litigation. At the trial level, modern judges, responding to a need for more active case management, intervene in the conduct of cases to an extent that may surprise a person who came to court expecting a judge to remain, until the moment of pronouncement of judgment, as inscrutable as the Sphinx." (footnote omitted)

Kirby J also discussed the attributes of the fictitious bystander:

"Such a person is not a lawyer. Yet neither is he or she a person wholly uninformed and uninstructed about the law in general or the issue to be decided. Being reasonable and fair-minded, the bystander, before making a decision important to the parties and the community, would ordinarily be taken to have sought to be informed on at least the most basic considerations relevant to arriving at a conclusion founded on a fair understanding of all the relevant circumstances." (footnotes omitted)

And further:

"a reasonable member of the public is neither complacent nor unduly sensitive or suspicious." (footnote omitted)

47 I agree with the observation of Kirby J that a fair-minded lay observer would, before forming a view about the existence of a reasonable apprehension of bias, take the trouble to inform himself or herself to the extent necessary to make a fair judgment.

48 The interposition of the fair-minded lay person could never disguise the reality that it is the assessment of the court dealing with a claim of apparent bias that determines that claim. As Professor Olowofoyeku says:

"In the end, despite the pitch on objectivity and the view that the apprehensions of bias must have an objective basis, it is the opinion of the reviewing court on this issue that matters."

Professor Olowofoyeku has expressed the view that the judicial construct of the informed observer no longer provides a reliable guide to decision-making on the issue of apparent bias[89]. However, the utility of the construct is that it reminds the judges making such decisions of the need to view the circumstances of claimed apparent bias, as best they can, through the eyes of non-judicial observers. In so doing they will not have recourse to all the information that a judge or practising lawyer would have. It requires the judges to identify the information on which they are to make their determinations. While it is necessary to be realistic about the limitations of the test, in my opinion it retains its utility as a guide to decision-making in this difficult area.

[Footnotes omitted]

[9] I have regard to these principles in determining the application before me.

The submissions

[10] The complaint of Lyndoch is that, in making the statement at paragraph [3] of the Directions issued for the matter, I have ‘pre-determined the question of remedy which was remitted by the Full bench for determination, without having regard to the further evidence or submissions as required by the Full Bench.’ 5

[11] Lyndoch submits that the question to be determined on the remitted matter is what remedy the Commission should order it says that the practicality of reinstatement to the low care area of Lyndoch was not subject to submissions in the matter at first instance and that formed the basis of the Full bench’s decision. It submits therefore that remedy - and in particular whether reinstatement is appropriate - is a necessary consideration in determining the remitted matter.

[12] In this respect Lyndoch submits that, by paragraph [3] in the Directions, I have indicated that reinstatement is appropriate. Viewed objectively it says I have ‘opined on what really is the ultimate issue.’ 6

[13] Further, it submits that ‘[T]he views expressed...go far beyond a tentative expression of the Commissioner’s current inclination as to remedy. Rather, the Commission has expressed a firm view regarding the appropriate remedy without having regard to the submissions or evidence of Lyndoch.’ 7 Lyndoch conclude that the lay person’s perspective is that I would not decide the question of remedy on the merits.

[14] In the expression of my view as to remedy, Lyndoch consider that a fair minded observer may consider that I might ‘not bring an impartial and unprejudiced mind to the resolution of the question [I am] required to decide.’ 8

[15] Lyndoch submits that it is not the intention of the Directions that is relevant but rather what the fair minded observer may objectively consider.

[16] Ms Bolden submits that it is clear from the decision of the Full Bench that, in considering the matter of remedy I am not to disregard submissions and evidence already made on the question. Rather, further evidence and submissions is limited to whether reinstatement to a position not involving work in the high care area is appropriate. In this respect Ms Bolden says that ‘the Full Bench fashioned a remedy [to the successful part of the appeal] directed to the narrow ground on which the Respondent succeeded on appeal: a lack of procedural fairness in relation to the proposed condition on reinstatement.’ 9

[17] Ms Bolden submits that the views expressed by me at paragraph [3] of the Directions are consistent with the decision of the Full Bench.

[18] In order to consider the condition for reinstatement - the matter remitted by the Full Bench - Ms Bolden says that it is necessary for the Commission to form a view as to the appropriateness of reinstatement. That view was formed in the decision at first instance and this was not a matter overturned on appeal. Further, in order to ensure procedural fairness it is necessary that any view as to the conditions on reinstatement be conveyed to the parties and a final decision not be made until the parties are given an opportunity to be heard. In this respect Ms Bolden submits that the Directions issued ‘are nothing more that the procedural mechanism by which the parties were invited to call evidence and to make submissions on the narrow basis required by the Full Bench.’ 10

Consideration

[19] The Directions issued must be considered in the context of what has been remitted to be determined by the Full Bench. The relevant paragraphs from the Full Bench decision are set out above. It is apparent that the Full Bench found that a failure to alert the parties to a qualified reinstatement constituted a denial of natural justice. The Full Bench upheld ‘the appeal in this respect’ and set aside the order ‘giving effect to that decision.’

[20] The Full Bench did not overturn the decision on reinstatement per se.

[21] The Full Bench then remitted ‘the matter’ back to me:

to hear evidence and submissions on the question of whether reinstatement of the Respondent into a position not involving work in a high care area is appropriate and determine a remedy having regard to such evidence and submissions, together with the evidence and submissions already before her. 11

[22] The question to decide given the appeal is whether reinstatement of Ms Bolden into a position not involving work in a high care area is appropriate on the basis of fresh evidence and submissions on that matter and taking into account evidence and submissions already heard.

[23] It could come as no surprise to an observer that my disposition is towards reinstatement of Ms Bolden to a position equivalent to that she had previously occupied but not in the high care unit. This was the initial conclusion and is that part of the decision overturned on appeal because Lyndoch ‘had no opportunity to put evidence and submissions in relation to the practicality of that outcome.’¹²

[24] To not inform the parties of that view in inviting further submissions would be to fall in to the same error identified by the Full Bench. To not inform the parties of such a view until the hearing had resumed would be to invite further delay as submissions and witness evidence on the specific matter were prepared. Reinstatement with the conditions specified in the decision at first instance is a view I hold. The final determination of the matter must be based, however, on informed submissions and evidence of the parties. That a ‘strongly worded view’ was expressed does not stop it being a provisional view.  13

[25] Importantly, the Directions issued went on to say that:

Given the circumstances of the appeal the following Directions are issued to determine the question of remedy...

[emphasis added]

[26] That is, in issuing the Directions the parties are invited to file material and witness statements on the question of remedy per se and are not restricted to filing material only as to whether Ms Bolden should be reinstated but not to the high care area. Matters as to the appropriateness and practicality of reinstatement may also be raised. The Directions must be read as a whole.

[27] There is nothing in the Directions put to the parties to deal with the remitted matter that could suggest to a fair minded observer that I would not be open to an alternative outcome on the basis of the evidence and arguments put. 14 Further, there is nothing put in any statements made by me to suggest to the fair minded observer that I will not take account of all of the material put before me.15 The test is not that my mind is blank, but rather that I am ‘so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented’.16

[28] Whilst Lyndoch seeks to discount the validity of the view expressed on the grounds that it was not in the context of an exchange between the bench and bar table I think this is too narrow a construction as to when or in what context it might be acceptable for a tentative opinion to be expressed. The issue of Directions is, in a way, an exchange between bench and bar table particularly in the context of this case where some submissions and evidence are already before the Commission.

[29] It is true that consideration of remedy is a two step process, but it is also iterative. The first determination is if reinstatement is appropriate. This will inevitably involve a consideration of the wishes of the applicant in a matter (who may not seek reinstatement) and the relationship between the employee and employer taking into account the findings in relation to the dismissal. Having determined the appropriateness of reinstatement the basis of the reinstatement must then be considered. This may involve a consideration of which part of the business the employee should be reinstated to, the size of the business, the working relationship between the employee and his or her co-workers in addition to the statutory requirements. This consideration may lead to a revision of the appropriateness of reinstatement based on practical consideration, but such a revision can only occur if the first consideration is that reinstatement is appropriate. Ultimately the appropriateness of reinstatement involves a consideration of the practicalities of such.

[30] In this matter, the view expressed at paragraph [3], in conjunction with the specific directions at paragraph [4], is that reinstatement is appropriate but invites submissions as to both matters in order to enable the Commission to reach a concluded view.

[31] In reaching my conclusion I have taken into account that the fair minded observer ‘would ordinarily be taken to have sought to be informed on at least the most basic considerations relevant to arriving at a conclusion founded on a fair understanding of all the relevant circumstances.’ 17 The relevant circumstances are those set out above and a general knowledge of the workings and procedures of the Commission, including decisions, appeals and the remittance of part of matters back to the primary decision maker. In such circumstances the fair minded observer, would, on an objective consideration of the Directions issued as a whole not be concerned that I would not bring an impartial mind to the determination of the matter.

[32] Whilst I am satisfied that Lyndoch has identified what it says may give rise to an apprehension of bias, I do not believe it has identified the logical connection between this statement and the ‘feared deviation’ from deciding the matter on its merits such that an apprehension of bias has been shown.

[33] For these reasons the application fails and is dismissed.

COMMISSIONER

Appearances:

S. Keating of Counsel with M. Leikina of Ryan Carlisle Thomas for the Applicant.

J. Tracey of Counsel with Z. Gannon of Minter Ellison Lawyers for the Respondent.

Hearing details:

2014.

Melbourne:

19 September 2014.

 1   [2014] FWC 3259.

 2   [2014] FWCFB 5969.

 3   Lyndoch submissions, paragraphs 14-17.

 4 [2011] HCA 2.

 5   Lyndoch submissions, paragraph 20.

 6   Transcript PN26.

 7   Lyndoch submissions, paragraph 21.

 8   Johnson v Johnson (2000) 201 CLR 488, [11].

 9   Bolden submissions, paragraph 14.

 10   Ibid paragraph 17.

 11   [2014] FWCFB 5969 [51].

12 [2014] FWCFB 5969, [49].

 13   British American Tobacco [2011] HCA 2[44].

 14   Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70.

 15   Viavattene v Health Care Australia [2013] FWCFB 2532.

 16   Minister for Immigration and Multicutural Affairs v Jia [2001] HCA 17, [72].

 17   Johnson v Johnson (2000) 201 CLR 488, [53].

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