Warwick Gee v Tasmanian Ports Corporation Pty Ltd T/A Tasports

[2016] FWC 565

[2016] FWC 565

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Warwick Gee
v
Tasmanian Ports Corporation Pty Ltd T/A Tasports
(U2015/11920)

COMMISSIONER RYAN MELBOURNE, 3 FEBRUARY 2016

Application for relief from unfair dismissal - apprehension of bias.

[1] The application in this matter was filed on 21 September 2015. The application identified that the Applicant had been given notice of his dismissal on 28 August 2015 and that the dismissal took effect on 24 September 2015.

[2] On 14 October 2015 the Respondent through its lawyers filed a Form F4 Objection to the application which raised two objections: firstly, that the Applicant had not been employed for the minimum employment period and secondly, that:

“2. At the time the Applicant filed the Unfair Dismissal Application on 21 September 2015 (Application) the Applicant had not been dismissed:

(a) the Applicant’s dismissal took effect when he was removed from the employment roster in accordance with Tasports Port Latta Loading Crews and Lines Boat Crews Agreement 2013;

(b) the Applicant was given 28 days’ notice of removal from the employment roster on 28 August 2015; and

(c) the Applicant was advised that the removal from the roster took effect on 24 September 2015;

(d) the Application was filed 3 days before the Applicant’s dismissal took effect.”

[3] The Applicant subsequently filed a second application for an unfair dismissal remedy on 23 October 2015 (U2015/12440). Given that the dismissal of the Applicant took effect on 24 September 2015 this second application was clearly out of time. As part of the reasons for filing an application out of time the Applicant said in its F2:

“1. This supplementary application is made in order to resolve a jurisdictional objection made by the respondent on 14 October 2015.
2. The applicant originally made an application on 21 September 2015. That matter was provided with matter number U2015/11920

3. By way of letter from the respondent dated 28 August 2015 (attached to this application and the application made on 21 September 2015), the applicant's termination was to take effect on 24 September 2015 as the applicant was advised: "You will be removed from the employment roster effective 24 September 2015."

4. The respondent appears to be making a jurisdictional objection to the effect that the applicant's original application is not valid because the applicant had not been dismissed at the time the application was filed.

5. The applicant contends that if required the Fair Work Commission may allow a correction to an application pursuant to its power contained ins 586 of the Fair Work Act 2009, that provides:

The FWC may:

(a) allow a correction or amendment of any application, or other document relating to a matter before the FWC, on any terms that it considers appropriate; or
(b) waive an irregularity in the form or manner in which an application is made to the FWC.

6. The A further contends that the original application of 21 September 2015 or this application made on 23 October 2015 should be treated as valid and will provide further submissions if necessary.”

[4] Both applications were listed for mention before me on 20 November 2015.

[5] A further mention was held in relation to both matters on 27 November 2015. As a result of that mention the Commission issued directions to the parties in relation to the filing and serving of material in relation to both of the objections raised by the Respondent in relation to the application in the present matter. The Directions required the Applicant to file and serve submissions and material in relation to its contention that the Commission has the power to and should exercise the power to amend the application. The Respondent was directed to file and serve submissions and material as to the power of the Commission to amend the application. Directions were also given in relation to the first objection raised by the Respondent. The final date for the filing of materials by both parties was 17 December 2015.

[6] On 8 December 2015, the date upon which the Respondent was to file and serve submissions and material in relation to the jurisdictional objection that the Applicant had not served the minimum employment period, the Respondent advised the both the Commission and the Applicant that the Respondent withdrew its jurisdictional objection that the Applicant had not served the minimum employment period.

[7] The Commission convened a further mention with the parties on 18 December 2015 to discuss further progress of the matter. The mention was conducted by way of a telephone conference with the parties. The mention was not recorded.

[8] On 21 December 2015 the Respondent’s lawyer, by way of an email to the Commission (copied to the Applicant’s union representative) sought that I recuse myself from determining the second objection raised by the Respondent on the basis of apprehended bias given a comment made by me during the mention on 20 November 2015.

[9] The Respondent contended that an apprehension of bias arose because during the telephone conference on 20 November 2015 “Commissioner Ryan cautioned the Respondent and Page Seager in respect of costs if the jurisdictional objection regarding the expiry of time and the waiver of irregularity was pursued. The caution as to costs indicates that Commissioner Ryan may have pre-judged the merit of the objection before having the benefit of submissions which may cause an apprehension of bias that the Applicant’s application to waive the irregularity or extend time would be granted.”

[10] No audio recording of the exact words used by the Commission and the parties to the conference exists.

[11] I acknowledge that I raised the issue of costs with the Respondent’s representative but I simply do not recall the words used. I am prepared to accept that the Respondent understood me to be cautioning the Respondent. Having said that the conference needs to be put into context.

[12] A relevant context in which the remarks attributed to me were made is that the Respondent had in October raised a significant objection in relation to the application having been made before dismissal had occurred and when the Applicant filed the second application the Respondent indicated at the conference on 20 November 2015 that it would oppose any extension of time being granted to the Applicant in relation to the second application. Prior to the mention on 20 November 2015 it was not clear whether the Respondent’s objection was based upon the Commission lacking jurisdiction to deal with an application filed before the dismissal took effect or was based on a contention that the Commission should not exercise its jurisdiction to deal with an application filed before the dismissal took effect. The discussion at the mention on 20 November 2015 did not clarify to the basis for the Respondent’s second objection.

[13] It was not until the Respondent filed its material on 17 December in accordance with the directions issued on 27 November that the detailed basis of Respondent’s objection was made clear, i.e. that the Respondent was contending that the Commission should not exercise a discretion to amend the application filed in this matter.

[14] Accepting as I do that the Respondent’s statement as to what I said on 20 November 2015 is accurate the question which arises is whether such comments could give rise to an apprehension of bias as contended for by the Respondent.

The Case Law

[15] There is a substantial body of authority on the matter of claims of an apprehension of bias against members of courts and tribunals.

[16] The Applicant’s written submission relied on the decision of Middleton J in Kirby v Centro Properties Ltd (No 2) 1(Kirby v Centro) and on the decision of VP Hatcher in ResMed Ltd v AMWU2. In that latter decision VP Hatcher deals with the principles relating to recusal for apprehended bias as follows:

“[5] The principles relating to disqualification for apprehended bias, particularly as they relate to a situation where a court or tribunal member has previously made a finding or stated an opinion about a particular issue, were usefully summarised by the Federal Court (Middleton J) in Kirby v Centro Properties Limited (No 2) as follows:

‘[8] 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.

[9] 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.

[10] 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.

[11] 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]).

[12] 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": Gascor v Ellicott [1997] 1 VR 332 at 348 (Ormiston JA); see also at 342 (Tadgell JA with whom Brooking JA agreed); and see Cabcharge at [34].

[13] 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.)

[14] 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.

[15] 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).

[16] 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.

[17] 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.

[18] 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.

[19] 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).

[20] 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.

[21] 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.

[22] 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.

[23] 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.’

[6] Two aspects of the principles summarised by Middleton J above require some elaboration in light the submissions advanced by ResMed. ResMed submitted that all that was necessary for it to demonstrate a reasonable apprehension of bias here was that the matters about which an opinion was expressed in the second appeal decision might possibly arise for consideration in respect of the AMWU rules application or the ResMed representation application.  That submission is, in my view, incorrect as a matter of principle in two respects. First, it is not sufficient simply that the court or tribunal member may be called on to determine an issue about which an opinion has already been expressed. There must be a further element, namely that in considering the issue about which an opinion has earlier been expressed, there is a real possibility that in doing so the court or tribunal member will merely adhere to the earlier expression of opinion without giving fair consideration to the evidence and arguments advanced that might support a different conclusion. This was explained in the following way by Hayne J in Minister for Immigration v Jia Legeng (footnotes omitted):

‘[185] Saying that a decision-maker has prejudged or will prejudge an issue, or even saying that there is a real likelihood that a reasonable observer might reach that conclusion, is to make a statement which has several distinct elements at its roots. First, there is the contention that the decision-maker has an opinion on a relevant aspect of the matter in issue in the particular case. Secondly, there is the contention that the decision-maker will apply that opinion to that matter in issue. Thirdly, there is the contention that the decision-maker will do so without giving the matter fresh consideration in the light of whatever may be the facts and arguments relevant to the particular case. Most importantly, there is the assumption that the question which is said to have been prejudged is one which should be considered afresh in relation to the particular case.

[186] Often enough, allegations of actual bias through prejudgment have been held to fail at the third of the steps I have identified. In 1894, it was said that (161):

"preconceived opinions - though it is unfortunate that a judge should have any - do not constitute such a bias, nor even the expression of such opinions, for it does not follow that the evidence will be disregarded." (Emphasis added)

Allegations of apprehended bias through prejudgment are often dealt with similarly (162).’

[7] ResMed's submissions in substance involved the proposition that only the first two of the three elements identified by Hayne J are necessary to be made out in order to establish a reasonable apprehension of bias. That submission cannot be accepted. As was stated by Gaudron and McHugh JJ in Laws v Australian Broadcasting Tribunal:

‘A reasonable bystander does not entertain a reasonable fear that a decision-maker will bring an unfair or prejudiced mind to an inquiry merely because he has formed a conclusion about an issue involved in the inquiry ... 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.’

[8] The second is that it is unlikely to be sufficient to establish the "logical connection" referred to in the second of the two analytical steps identified in Ebner that the issue about which an opinion has previously been expressed might only possibly arise for consideration in the proceedings in which there is said to be a reasonable apprehension of bias. The authorities suggest instead that the issue about which there is said to be pre-judgment should be a "live and significant issue" in the instant proceedings, or must be "the question involved in" the proceedings" or one that the court or tribunal "has to decide". Certainly an analysis is required of the role which the issue about which the opinion has been expressed will play in the instant proceedings. Although the test for reasonable apprehension of bias is framed in terms of a real (and not remote) possibility, I conclude from the authorities that there will generally not be a real possibility of a reasonable apprehension of bias on the basis of prejudgment of an issue which is of little or no relevance or significance to the present proceedings.” 3

[17] The reasonable bystander test is an important element in the process of determining whether or not recusal on the grounds of apprehended bias should occur. It is appropriate to note that it is the member against whom an apprehension of bias claim has been raised who has to apply the reasonable bystander test. In applying the reasonable bystander test in the present matter I am guided by the observation of French CJ in British American Tobacco Australian Services Limited v Laurie as follows:

“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.” 4

Consideration

[18] The critical contention made by the Respondent is that the comments made by the Commission in relation to costs at the mention on 20 November 2015 “indicates that Commissioner Ryan may have pre-judged the merit of the objection before having the benefit of submissions which may cause an apprehension of bias that the Applicant’s application to waive the irregularity or extend time would be granted”.

[19] This contention must be understood in the light of what Hayne J said in Minister for Immigration v Jia Legeng:

“185. Saying that a decision-maker has prejudged or will prejudge an issue, or even saying that there is a real likelihood that a reasonable observer might reach that conclusion, is to make a statement which has several distinct elements at its roots. First, there is the contention that the decision-maker has an opinion on a relevant aspect of the matter in issue in the particular case. Secondly, there is the contention that the decision-maker will apply that opinion to that matter in issue. Thirdly, there is the contention that the decision-maker will do so without giving the matter fresh consideration in the light of whatever may be the facts and arguments relevant to the particular case. Most importantly, there is the assumption that the question which is said to have been prejudged is one which should be considered afresh in relation to the particular case.

186. Often enough, allegations of actual bias through prejudgment have been held to fail at the third of the steps I have identified. In 1894, it was said that:

‘preconceived opinions - though it is unfortunate that a judge should have any - do not constitute such a bias, nor even the expression of such opinions, for it does not follow that the evidence will be disregarded’. (emphasis added)

Allegations of apprehended bias through prejudgment are often dealt with similarly.” 5 (footnotes omitted)

[20] The real difficulty with the contention of the Respondent is that as at 20 November 2015 it was not known by the Commission or the Applicant what was the substance of and rationale for the Respondent’s second objection. This only became clear after the Applicant filed its material on 8 December 2015 and the Respondent filed its material on 17 December 2015.

[21] It was never going to be possible to come to any concluded view as to the merits of the Respondent’s second objection until the nature of the objection was clearly articulated by the Respondent, which only occurred on 17 December 2015 with the filing of the Respondent’s material.

[22] Whilst I accept, for the purpose of this matter, that the first limb of the test in Ebner has been met, the focus must necessarily be on the second limb of the test in Ebner.

[23] As was said in Ebner “the question is one of possibility (real and not remote), not probability”.

[24] In all of the circumstances of the present matter would a fair minded lay observer come to the view that there was a real possibility that the Commission would not bring an impartial mind to the resolution of the Respondent’s second objection once both the Applicant and the Respondent set out their respective cases?

[25] It would appear to be unrealistic to conclude that a fair minded lay observer would come to the view that comments made by the Commission at the mention on 20 November 2015 would lead to a real possibility that the Commission would not bring an impartial mind to the resolution of the Respondent’s second objection once both the Applicant and the Respondent set out their respective cases.

[26] Any reasonable apprehension that the Commission would not bring an impartial mind to the resolution of the Respondent’s second objection once both the Applicant and the Respondent set out their respective cases must be “firmly established”. In the present matter it would not appear reasonable for any fair minded lay observer to come to the view that the comments made by the Commission in a mention before directions had been given to the parties and before the Respondent’s case was articulated that it was “firmly established” that the Commission would not bring an impartial mind to the resolution of the objection raised by the Respondent.

[27] Further, the Commission as currently constituted was only dealing with the two objections identified by the Respondent in its Form F4 (now reduced to one objection). Only if the Respondent’s objection was dismissed would the substantive merits of the unfair dismissal application be considered by another member of the Commission and that member would most likely deal with any costs applications if such were made by either party in relation to the proceedings in relation to the application. Thus any view or comment expressed by myself in the mention on 20 November 2015 would have no possible impact on the substantive proceedings or on any costs applications. An issue as to costs was never going to be before me.

[28] Having considered the matters raised by the Respondent in light of the authorities I conclude that I should not recuse myself from dealing with the matter before me. I will proceed to deal with the Respondent’s second objection to the application in this matter.

COMMISSIONER

 1 (2011) 202 FCR 439.

 2   [2015] FWC 4007.

 3   Ibid paras 5-8.

 4 [2011] HCA 2 at 48.

 5 [2001] HCA 17 at 185 and 186.

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