REASONS FOR DECISION

Fair Work Act 2009
s.789FC - Application for an order to stop bullying

Trevor Yawirki Adamson
(AB2016/662)

COMMISSIONER HAMPTON

ADELAIDE, 10 MARCH 2017

Application for an FWC order to stop bullying – conciliation proceedings conducted by the Commission – detailed statement and recommendations issued – whether Member should recuse from further conduct of the application – reservations expressed by a party – whether circumstances lead to proper basis for apprehended bias – no assessment of merit made – no basis for apparent or actual bias – duty to deal with application – not necessary or appropriate to disqualify.

1. The Background

[1] Mr Trevor Adamson has made an application for a stop bullying order under s.789FC of the Fair Work Act 2009 (the FW Act). Mr Adamson is the Chairperson of the Executive Board of the Anangu Pitjantjatjara Yankunytjatjara Inc (APY Inc). His application names two persons, Mr Richard King, General Manager and Mr Bernard Singer, Deputy Chairperson, of the Executive Board and various allegations have been made about their conduct. APY Inc is named in the application and together with the Mr King and Mr Singer form the respondent parties.

[2] The Anangu Pitjantjatjara Yankunytjatjara Land Rights Act 1981 (SA) (APY Act) provides for the vesting of title to certain lands in Northern South Australia to the people known as Anangu Pitjantjatjara Yankunytjatjara. The APY Act establishes the Executive Board which consists of 10 elected or appointed members, including a Chairperson and Deputy Chairperson. It also provides for the appointment, by the Executive Board, of a Director of Administration and General Manager. The APY Act also establishes the APY Inc as a corporate entity with status, powers and functions.

[3] In the responses provided to the application, Mr Singer and Mr King have strongly rejected the allegations made by Mr Adamson. They have also raised three “jurisdictional issues”; being that:

● Mr Adamson is not a “worker” as defined by the FW Act and the conduct complained of did not occur in the context of the applicant being “at work”;
● as far as any of the allegations may be factually correct, it should be regarded as reasonable management action carried out in a reasonable manner; and
● the application is vexatious and an abuse of process.

[4] The Commission as presently constituted has been dealing with this application through various processes. By consent, the Commission conducted a two day conciliation conference in Alice Springs on 8 and 9 December 2016. The purpose of the conference was to explore whether an agreed outcome could be achieved and it was conducted on a without prejudice basis. Mr Adamson attended with his support person, Mr Chambers. Mr Harbord of Johnston Withers, attended as representative of APY Inc and Mr Singer and Mr King, who were also in attendance. Mr Tjami, the Director of Administration, also attended on behalf of APY Inc. It was agreed by all…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2017] FWC 1340
Decision Date: 10 MARCH 2017

CaseChat Overview and Summary

In the matter of Trevor Yawirki Adamson, the applicant sought an order from the Fair Work Commission to stop alleged workplace bullying. The application was heard by a Member of the Commission, who conducted conciliation proceedings and issued a detailed statement and recommendations. The applicant, expressing reservations about the Member's impartiality, contended that the Member should recuse from further proceedings on the basis of apprehended bias.

The central legal issue before the court was whether the Member should recuse from further conduct of the application due to the applicant's reservations about the Member's impartiality. The court examined the circumstances to determine if there was a proper basis for the apprehension of bias. The court noted that the Member had not made an assessment of the merits of the case and had not exhibited any conduct that would constitute apparent or actual bias. The court emphasised the duty of the Member to deal with the application and concluded that there was no basis for the Member to disqualify themselves from the proceedings.

The court held that it was neither necessary nor appropriate for the Member to recuse themselves from further proceedings. The court found that the applicant's reservations did not provide a proper basis for the apprehension of bias, and the Member's duty to deal with the application remained. The court confirmed that the application would proceed with the same Member.

No final orders were made in the text provided.

Orders