Tawanda Gadzikwa v Australian Government Department of Human Services T/A Department of Human Services

[2018] FWC 2791

[2018] FWC 2791

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Tawanda Gadzikwa
v
Australian Government Department of Human Services T/A Department of Human Services
(U2018/3060)

DEPUTY PRESIDENT CLANCY MELBOURNE, 17 MAY 2018

Application for relief from unfair dismissal – bias application made – bias application dismissed.

[1] Mr Tawanda Gadzikwa has made an application for remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act). Mr Gadzikwa’s employment was terminated by the Department of Human Services (the Department) on 1 March 2018.

Background to this decision

[2] On 9 April 2018, the application was listed for hearing on each of 6, 7 and 8 June 2018. Directions were also made for the filing and service of material by both parties.

[3] In response, Mr Gadzikwa sent email correspondence to the Commission on both 9 and 11 April 2018, seeking an extension for the filing and service of his material, information regarding the conduct of a hearing at the Commission and an update in relation to anti-bullying applications he had previously made to the Commission, the files for which had been allocated to me.

[4] On 13 April 2018, the Commission replied, advising:

“Your hearing will be held in public. This is a requirement under s593(2) of the Fair Work Act 2009, unless a party to the proceeding applies for all or part of it to be held in private and satisfies the Commission that this is desirable.

As to the typical duration of proceedings, it will depend on the number of witness that the parties intend to call and the length of time it will take to hear their evidence. It will be easier to estimate how long your matter might take once you and the Respondent have filed and served your materials.

As to your request for an extension of time for the filing and service of your materials, you are granted an extension until noon on 30 April 2018. The Respondent will then be required to file and serve its material by noon on 21 May 2018.  Any further extensions will require an application in writing with supporting evidence as to why the extension is necessary and may result in your current conference/hearing dates being vacated. This is because procedural fairness requires the Respondent to be given sufficient time to respond and prepare for hearing. Additionally, the Commission Member who will be allocated this matter will require sufficient time before the conference/hearing to prepare.

If you wish to attend the hearing by phone or skype, you will need to make this request in writing to the Commission Member who is allocated this matter for the conference/hearing, setting out the reasons why and evidence in support. Ordinarily parties are required to attend hearings in person. You matter is due to be allocated the Commission Member who will be presiding at the Conference/Hearing on Thursday, 17 May 2018 so any request can be made after that.

As to your enquiry regarding your anti-bullying applications, Deputy President Clancy has advised that he previously advised the parties that he would not be dealing further with the anti-bullying applications until the review processes available to you with the Merits Protection Commissioner had been completed. Further, the Deputy President advises that no steps will be taken in relation to your anti-bullying applications while these unfair dismissal proceedings are being conducted. If the outcome from your unfair dismissal application is an order reinstating you to your previous position of employment, you are invited to contact the Deputy President’s Chambers with any further questions you might have relating to your anti-bullying applications.”

[5] On Friday 4 May 2018, Mr Gadzikwa appeared to make application for a Direction from the Commission under Rule 12(2) of the Fair Work Commission Rules 2013 (the Rules) that the Department not be represented by lawyers. Further, the Department raised concerns that Mr Gadzikwa had not filed a witness statement in response to the (amended) directions requiring this by 30 April 2018.

[6] Resolution of these matters fell to me in my capacity as Termination of Employment Panel Head. Accordingly, on Monday 7 May 2018, I made the following directions:

•  The Department of Human Services was directed to file in the Commission and serve on Mr Gadzikwa any material upon which it relied in relation to Mr Gadzikwa’s request for a Direction regarding representation by a lawyer or paid agent, by 2.00pm on 10 May 2018.

•  Mr Gadzikwa was directed to file in the Commission and serve on the Department of Human Services any material upon which he relied in reply to the Department of Human Services’ material, by 2.00pm on 14 May 2018.

•  Mr Gadzikwa was further directed to file in the Commission and serve on the Department of Human Services the statement of evidence on which he intends to rely at the hearing of the matter on 6-8 June 2018, by 2.00pm on 14 May 2018.

•  The matter was listed for a Mention hearing, in relation to Mr Gadzikwa’s request for a Direction regarding representation by a lawyer or paid agent, via telephone at 2.00pm on 16 May 2018.

[7] On Monday 14 May 2018, Mr Gadzikwa sent email correspondence to the Commission requesting that I recuse myself from all matters in relation to his unfair dismissal application and the anti-bullying matters AB2016/444 and AB2016/611 (which have previously been allocated to me).

[8] The Mention before me proceeded on 16 May 2018. I confirmed at the outset of the Mention my understanding, that the Mention was to deal with what appeared to have been an application by Mr Gadzikwa for a Direction from the Commission under Rule 12(2) of the Rules. I also indicated more broadly that the file was due to be allocated to the member of the Commission who was to hear Mr Gadzikwa’s unfair dismissal application (the presiding member) on 17 May 2018 and:

•  I would not be hearing and determining the merits of Mr Gadzikwa’s unfair dismissal application at the hearing on 6-8 June 2018, with this to be the role of the presiding member;

•  The question of representation at the hearing of the merits would be resolved by the presiding member;

•  The format of the hearing would also be determined by the presiding member (Mr Gadzikwa has previously requested he attend the hearing via skype); and

•  If orders requiring that certain people attend the hearing were required, the decision regarding this would be one for the presiding member.

[9] Having done this, I asked Mr Gadzikwa at the outset to confirm whether he required the request for a Direction from the Commission under Rule 12(2) of the Rules to be determined. Mr Gadzikwa replied that he had not asked for a Direction and he had no matters for me to deal with. I asked him to confirm whether he had filed all the material he intended to rely on at hearing and Mr Gadzikwa said that this depended on what the Department filed on 21 May 2018 and depending on this, he may need to file additional material.

[10] The Department then raised some issues it had with the conduct of the matter. In particular, it raised concerns that it had only received Mr Gadzikwa’s witness statement on 14 May 2018 and, coupled with material he had previously filed, it would require some time to understand what the combination of it all presents, in terms of the case it had to meet. The Department also expressed concern that it was unclear as to whom Mr Gadzikwa intended to call as a witness or whether he intended to submit further material.

[11] Since what the parties had raised had possible implications for whether or not the hearing could proceed on 6 June 2018, I decided addressing what both parties had raised about the filing of further material and the implications in terms of scheduling if this occurred, was required.

[12] Before I could do that however, I asked Mr Gadzikwa to confirm whether he requested that I recuse myself. He confirmed he did.

[13] The Department sought to be represented by Mr Millar of Counsel pursuant to s.596 of the Act and, having heard from the parties and considered s.596, I was satisfied the matters involving a suggestion of bias and/or prejudgement were of sufficient complexity to warrant the Department being granted permission to be represented by Mr Millar.

[14] I asked Mr Gadzikwa on what basis I should recuse myself and he advised the basis was outlined in the email correspondence to the Commission, sent at 9.29am on 14 May 2018, where he requested that I recuse myself from all matters in relation to his unfair dismissal application and anti-bullying matters AB2016/444 and AB2016/611. I had read this email, in which Mr Gadzikwa had submitted:

•  He had previously detailed his concerns regarding his anti-bullying matters AB2016/444 and AB2016/611 and the majority of them have not been addressed by me;

•  My handling of his anti-bullying matters has been ‘a polar opposite’ to what the Commission outlines is the focus of that jurisdiction;

•  I had done nothing in response to his applications and had been complicit in the decline of his health and demise of his employment.

•  He would like his bullying claims to be decided in tandem with the unfair dismissal claims as the question of whether he was bullied would certainly factor into determining whether his dismissal was harsh and if appropriate, the orders necessary to facilitate his return to work; and

•  In light of me having presided over his anti-bullying matters and being Panel Head for his unfair dismissal matter, I ought now recuse myself from making any further directions pertaining to this matter and the anti-bullying matters.

[15] Mr Gadziwka also indicated that he was “not comfortable” with me asking him to address his application that I recuse myself, however at the Mention, he acknowledged he had been advised on 14 May 2018 that it would be dealt with by me at it.

[16] In addition to what he had outlined in his email of 14 May 2018, Mr Gadzikwa submitted:

•  He had found my judgement to be very poor;

•  His dismissal related to his bullying and so, if it is determined that his dismissal is unfair, it will reflect badly on me, because I presided over his anti-bullying matters and did nothing and so have an interest in how his unfair dismissal application plays out; and

•  If it is determined that his dismissal is unfair it will suggest his anti-bullying matters had substance and will reflect badly on me because I did nothing and thus, I have an interest in how all this plays out.

[17] The Department submitted the matters before me in the Mention were limited in scope and largely procedural and administrative in nature being directions for the efficient and fair conduct of the matter. Additionally, it submitted none of the merit considerations were to be determined at the Mention and the only issues to be determined were the directions for hearing and the decisions were to be procedural. It submitted that an application to vacate the hearing dates and for further directions properly fell to the Termination of Employment Panel Head and there was no reason for a departure from this.

[18] Mr Gadzikwa made no response to the Department’s submissions.

Decision

[19] What follows is the edited reasons I delivered in transcript.

[20] I have advised the parties that I will not be the presiding member when Mr Gadzikwa’s unfair dismissal application will be heard, and as such, I have no role to play in the determination of the merits of his application. Another member of the Commission will decide whether Mr Gadzikwa was unfairly dismissed and I have no role to play in that decision.

[21] As regards my broader role as Panel Head of the Termination of Employment panel, my administrative responsibilities involve case management and in doing so, I oversee a system whereby hearing dates are set, directions are made for the filing and service of materials by both parties and if, prior to the allocation of an application to the Member who will ultimately hear it, there are matters that need to be attended to, they fall to me to manage. Some will be the subject of variations to directions and others will require interim hearings and determinations but ultimately, my role is one of case management and the substantive merits will always fall to the Member to whom a file is allocated for conducting the hearing and making the decision.

[22] As to the other matters that have been raised by Mr Gadzikwa in relation to my conduct of his two anti-bullying applications, I have previously indicated to him the approach I intend to adopt. That is, I will not make any decisions in relation to the anti-bullying applications until the unfair dismissal application is determined and if the outcome of that application is an order for reinstatement, I will conduct the anti-bullying applications further. If there is no order for reinstatement, the anti-bullying applications will still be dealt with, but the prospect for further bullying in the workplace will not materialise.

[23] In so far as there is said to be any link between the matters that gave rise to the anti-bullying applications and the matters that are going to be in issue in the unfair dismissal application, the member hearing the (unfair dismissal) matter will have to form a view as to the relevance of those matters and then, whether or not they go to any of the issues that he or she has to decide to determine whether the dismissal of Mr Gadzikwa was harsh, unjust or unreasonable. In that sense, I do not consider that I should recuse myself from what limited role I have in the conduct of this unfair dismissal application, which is limited to the administrative decisions about the filing of material, the setting of hearing dates and any other matters that do not involve the manner in which the hearing will be conducted, that are raised before the application is allocated to the presiding member.

[24] Accordingly, I do not recuse myself from the case management of this file.

DEPUTY PRESIDENT

Appearances:

T Gadzikwa on his own behalf.

R Millar of Counsel for the Respondent.

Hearing details:

2018:

Via Telephone:

May 16.

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