Fair Work Act 2009_

s.394 - Unfair dismissal

Application for relief from unfair dismissal - apprehended bias.

[1] This matter concerns an application made by Mr Anthony Patrick Dunne (Mr Dunne or the applicant) under section 394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy. The respondent is RePipe Pty Ltd (RePipe or the respondent).

[2] The application was made on 2 June 2014 and the parties participated in a telephone conciliation conference with a Fair Work Commission conciliator on 8 July 2014 however the matter was not resolved.

[3] The matter was allocated to me for determination on 17 July 2014.

[4] On 21 July 2014 the following letter was sent to Mr Dunne and his representative Mr Kelemen,

Your application alleging unfair dismissal was not resolved during the telephone conciliation. Your application has now been referred to me for determination.

If you wish to continue with your application it will be listed for a formal determinative proceeding. You will be directed to provide a written statement of evidence for each of your witnesses (including yourself if you give evidence) and a written outline of your submissions. At the proceeding all witnesses the parties wish to call will be required to attend to give their sworn evidence. Submissions by both parties will be heard concerning the facts and relevant legal principles.

If, after considering the information provided, I conclude it is not necessary to hold a hearing this matter may be determined on the papers.

Please be aware that applicants can be ordered to pay the costs of the other party, see sections 400A and 611 of the Fair Work Act 2009 below:

(1) The FWC may make an order for costs against a party to a matter arising under this Part (the first party) for costs incurred by the other party to the matter if the FWC is satisfied that the first party caused those costs to be incurred because of an unreasonable act or omission of the first party in connection with the conduct or continuation of the matter.

(2) The FWC may make an order under subsection (1) only if the other party to the matter has applied for it in accordance with section 402.

(3) This section does not limit the FWC's power to order costs under section 611.

s. 611 Costs

(1) A person must bear the person's own costs in relation to a matter before the FWC.

(2) However, the FWC may order a person (the first person) to bear some or all of the costs of another person in relation to an application to the FWC if:

(a) the FWC is satisfied that the first person made the application, or the first person responded to the application, vexatiously or without reasonable cause; or

(b) the FWC is satisfied that it should have been reasonably apparent to the first person that the first person's application, or the first person's response to the application, had no reasonable prospect of success.

Note: The FWC can also order costs under sections 376, 400A, 401 and 780.

(3) A person to whom an order for costs applies must not contravene a term of the order.

Note: This subsection is a civil remedy provision (see Part 4-1).

You are directed to advise in writing by no later than 4:00pm Tuesday, 29 July 2014 either that you wish to continue with your application or instead that you wish to discontinue your application. If you discontinue your application there will be no further proceedings and your file will be closed.

The response to this direction can be provided to the Fair Work Commission by post, facsimile or email to:

● In person: Level 16, 111 St Georges Terrace, Perth

● Email: Chambers.Williams.C@fwc.gov.au

[5] That same day my chambers received the following email from the applicant's representative,

I would be interested to know why letters of that kind are addressed to the applicant and not the respondent. Costs orders can be made against either. Sending the letter only to the applicant has the effect of chilling applicants while emboldening respondents for no apparent reason.

[6] The next day, 22 July 2014, Mr Kelemen forwarded to my chambers an email that had been sent to his office by the applicant. That email is set out below.

I just have a few question regarding email I received yesterday From Fair work commission. I know Amnon has sent a reply to commission and is waiting some answer too.

My Question is that a normal approach from them ?

Is the commissioner related to Heather Williams ?

I have other but just would like to know what is happening I understand Amnon is a a very busy. if has scared me a lot and both me and my wife did not sleep last night.

[7] The respondent's Form F3−Employer Response to Unfair Dismissal Application filed on 17 June 2014 and served on the applicant had identified Heather Williams as the respondent's legal representative.

[8] That same afternoon my associate on my instruction replied to Mr Dunne and Mr Kelemen as follows,

Regarding the queries raised by Mr Dunne and forwarded on to the Commission by Mr Keleman today, Commissioner Williams advises the letter sent to the Applicant on 21 July 2014 is sent out by Commissioner Williams as part of his normal practice.

Secondly Commissioner Williams advises that he does not have a relative by the name of Heather Williams.

[9] On 29 July 2014 the following email was received in my chambers,

As you are aware, your letter of 21 July 2014 is the subject of a formal complaint before the President of the Fair Work Commission.

I am accordingly instructed to request that you disqualify yourself from this matter on the grounds of apprehended bias.

[10] This decision deals with the application made on behalf of Mr Dunne that I disqualify myself from determining his application for an unfair dismissal remedy on the grounds of apprehended bias.

[11] Both parties have agreed it is appropriate in this case for the parties to file written submissions and for the question to be determined on the papers.

[12] The applicant submits the test of apprehended bias is whether a fair-minded observer might draw a logical connection between my letter of 21 July 2014 and the possibility that I, as the decision-maker, cannot bring an open mind to the issues.

[13] It is submitted an open mind cannot be brought to bear on the issues if it is affected by pre-judgment.

[14] The applicant says the test does not require an inevitable conclusion to be drawn.

[15] It is not appropriate to consider the actual or possible reasons why the letter was written to the applicant. The fact that there might be reasonable alternative possibilities does not mean that a fair-minded observer might nonetheless conclude that the letter demonstrated pre-judgment.

[16] It is a fundamental rule of natural justice that adjudicators are free from apprehended bias and that parties are (and appear to be) equal before the law.

[17] The applicant submits it is noteworthy that the letter:

• was written only to the applicant and his representative, whereas both parties should, theoretically, be at equal risk of costs.

• was (only) copied to the respondent and its representative.

• required the applicant to confirm his intention to continue with his application specifically in connection with the overhanging possibility of an adverse costs order, a possibility which would be relieved upon discontinuance.

• refers to a risk (of an adverse costs order) which is very rare, much rarer than in ordinary civil court proceedings, where such a letter is not conventionally sent to only one party.

[18] Accordingly, it is submitted, a fair-minded observer might reasonably conclude that I have signalled a negative assessment of the applicant's case.

[19] The applicant submits a fair minded observer would not have knowledge of the criteria used to decide costs applications, nor of the (comparative) rarity of such orders, etc. The test of apprehended bias emphasises the need to consider the complaint of bias not by what adjudicators and lawyers know, but by how matters might reasonably appear to the parties and to the public.

[20] The respondent's submits the applicant's application for me to disqualify myself on the grounds of apprehended bias is without merit.

[21] The respondent finds the contents of the letter in question dated 21 July 2014 from me to be wholly uncontroversial and unsupportive of the allegations of apprehended bias.

[22] The respondent submits the letter merely states the procedure and relevant sections of the Act that all applicants ought to be aware of and consider in relation to their application.

[23] The letter equally applies to both parties when you consider the sections of the Act which are reproduced and referred to therein.

[24] The respondent notes the following in relation to the letter:

• the letter specifically refers to sections 400A and 611 of the Act and reproduces them, verbatim;

• the letter also refers to costs orders that can be made under sections 376, 400A, 401 and 780 of the Act;

• section 400A of the Act specifically refers to the potential for costs orders to be made against either party;

• section 611(2)(a) of the Act specifically refers to both the person making the application and the person responding to the application being at risk of an adverse costs order; and

• sections 376, 401 and 780 of the Act are in relation to costs orders personally against lawyers and paid agents for their conduct in the matter.

[25] In considering the contents of the letter, irrespective of the addressees, the warning in relation to costs exposure is clear that it applies to both applicants as well as respondents.

[26] It is submitted that had the letter been addressed to both the applicant and respondent, rather than being only copied to the respondent, it would be merely cosmetic in the circumstances.

[27] The information provided to the applicant in relation to costs exposure is publicly available in the Act and also on the Commission's website.

[28] Should a party require legal advice in relation to costs exposure they are entitled to (and should) seek it. The onus to seek legal advice on their potential costs exposure rests with the parties themselves.

[29] The respondent says the direction from me requiring the applicant to confirm his intention to continue with his application armed with the knowledge that if the applicant continued, the parties would be exposed to potential costs orders, is procedural in nature and does not support the allegations of apprehended bias.

[30] In the circumstances the respondent submits, the applicant's application for me to disqualify myself on the grounds of apprehended bias ought to be dismissed.

[31] In the case of Construction, Forestry, Mining and Energy Union v Fair Work Commission [[2014] FWCFB 1443] a Full Bench of the Commission has recently summarised the principles regarding apprehended bias as follows,

"[33] The test to be applied in relation to disqualification by reason of the appearance or apprehension of bias (including by way of prejudgment) is "whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide ". That test is derived substantially from the test set out in the High Court's judgment in Livesey v The New South Wales Bar Association. In Livesey, the High Court said, at paragraphs 299-300, "... each case must be determined by reference to its particular circumstances".

[34] In Laws v Australian Broadcasting Tribunal, Gaudron and McHugh JJ dealt with the issue of prejudgement, deciding:

"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."

"Thus, in Ex parte Angliss Group, the mere fact that the statement of reasons for a previous decision gave rise to the conclusion that members of the Conciliation and Arbitration Commission tended to favour the adoption of a principle of equal pay for both sexes as soon as it was economically and industrially practicable to do so was not a ground for disqualifying them from sitting on an application for an equalisation of rates of pay for male and female employees brought in reliance upon their reasons. This Court rejected [(1969) 122 C.L.R., at p. 554] the notion that a fair and unprejudiced mind was 'necessarily a mind which has not given thought to the subject matter or one which, having thought about it, has not formed any views or inclination of mind upon or with respect to it'. In Re Shaw, the transcript showed that a judge of the Family Court of Australia had expressed opinions adverse to the case for the husband before his counsel had opened his case. Nevertheless, Gibbs A.C.J., with whose judgment Stephen J. and Wilson J. agreed, said [(1980) 55 A.L.J.R., at p.14; 32 A.L.R., at p. 51] that the evidence did not justify 'a conclusion that the views which the learned judge expressed, although strong, were other than provisional, or that it could reasonably be suspected that at the end of the case she would not decide with a fair and unprejudiced mind'." (References omitted)

[32] In this matter then I am required to consider whether a fair-minded lay observer might reasonably apprehend that I might not bring an impartial and unprejudiced mind to the determination of Mr Dunne's application considering the particular circumstances of this matter.

[33] The submission for the applicant is that considering the terms of the 21 July 2014 letter "...a fair-minded observer might reasonably conclude that the Commissioner has signalled a negative assessment of the applicant's case."

[34] That letter explained to the applicant what would now happen with his application, what he would be required to do if there was to be a determinative proceeding, alerted him as the applicant to the issue of costs setting out the relevant provisions from the legislation and then directed him to confirm whether he wished to continue with his application or not.

[35] The letter allowed the recipient to read the specific provisions in section 400A and 611 of the Act regarding costs and cost orders and to consider those provisions in the context of their own situation.

[36] The letter does not refer to any of the particulars of the application nor does it refer to the respondent's position regarding the application.

[37] Fair-minded lay observers can be expected to have a general appreciation that pursuing any form of legal action may expose a party to costs and a mention of this possibility would not I think be likely to be seen as out of the ordinary by such an observer.

[38] In my view a fair-minded lay observer would understand the letter to be an explanation of the Commission's procedures if the applicant continues with his application, with a cautionary note about costs if he does so and a requirement for him to advise whether he wishes to continue or not.

[39] Consequently I do not accept that a fair-minded observer might reasonably conclude from the terms of the letter to the applicant that I had formed a negative assessment of the applicant's case.

[40] Further it seems to me that even if I am wrong and a fair-minded lay observer might reasonably conclude from the letter that I had formed a negative assessment of the applicant's case that falls well short of the necessary conclusion that it could reasonably be suspected that at the end of hearing of the applicant's matter I would not decide the substantive matter with a fair and unprejudiced mind.

[41] In my view the circumstances here do not give rise to a reasonable apprehension in a fair-minded lay observer that I might not bring an impartial and unprejudiced mind to the determination of this application. I am not satisfied I should disqualify myself.

[42] The application for disqualification is dismissed.

[43] Consequently Mr Dunne's unfair dismissal remedy application will be listed for hearing and the parties will be notified accordingly in due course.

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