Fair Work Act 2009

s.394 - Unfair dismissal

• [1] On 7 June 2022, Ms Juliana Tang (Ms Tang) filed an application (Application) pursuant to section 394 of Fair Work Act 2009 (Cth) (FW Act) with the Fair Work Commission (FWC) alleging she was unfairly dismissed by Curtin University (Curtin).

• [2] Ms Tang was dismissed from her employment as a Support Officer, Learning Teaching when Curtin determined that she was unable to meet the inherent requirements of her role because she did not comply with then prevailing mandatory vaccination requirements.

• [3] Ms Tang indicated in the Application that she was represented by Mr Alex Smith (Mr Smith) who according to the Application is neither a lawyer nor a paid agent.

• [4] On 22 June 2022, Curtin University filed a Form F3 - Employer Response to Unfair Dismissal Application, noting it had no jurisdictional objections to the Application.

• [5] The Application was listed for telephone conciliation before a Staff Conciliator on 5 July 2022 but the issues between the parties could not be resolved.

• [6] The Application was allocated to my Chambers on 21 July 2022 and on the same day an email was sent from Chambers to Ms Tang drawing her attention to a page on the FWC website containing summaries of recent decisions involving dismissals in relation to mandatory vaccinations.

• [7] Ms Tang indicated that she wished to proceed with the Application and on 26 July 2022 directions for the filing of materials in advance of a hearing were issued to the parties (Directions). The Directions invited the parties to inform Chambers if they wished for the Application to be listed for a conciliation conference.

• [8] The Directions directed the parties to file any submissions seeking leave to be represented at the hearing by 4pm 4 August 2022 and any objections to leave to be represented by 4pm on 11 August 2022.

• [9] On 4 August 2022 Ms Tang filed an outline of submissions, a witness statement, document list and annexures and authorities upon which she relied totalling excess of 600 pages.

• [10] On 4 August 2022 Mills Oakley filed submissions seeking leave for Curtin to be represented by Mills Oakley at the hearing of the Application. In this correspondence Curtin requested that the Application be listed for a conciliation conference.

• [11] On 9 August 2022 Mills Oakley sought an extension of three business days for Curtin to file its materials on the grounds that the Applicants materials were voluminous, and the materials had only that day been provided to Mills Oakley.

• [12] On 10 August 2022 a Notice of Listing was sent to the parties informing them that the Application had been listed for an in-person conciliation conference on Wednesday 17 August 2022. The Notice of Listing directed the parties to file any submissions seeking leave to be represented at the conciliation conference by 4pm on 12 August 2022 and any objections to leave to be represented by 4pm on 15 August 2022.

• [13] On 10 August 2022 after receiving the Notice of Listing, Ms Lisa Forstner (Ms Forstner), Associate Director of Workplace Relations at Curtin wrote to Chambers advising that:

"I represent the Respondent and attended the prior Conference of this matter conducted by Conciliator - Judith Dikstein.

I further advise that I am on leave from 16-26 August 2022 and accordingly request a new listing date with availability from the week of 29 August 2022.

I have copied in the Applicant and her represent for their information.

• [14] On 10 August 2022 after receiving Ms Forstner's email, Chambers wrote to the Parties proposing an alternate date for the Conciliation Conference and asking them to confirm whether they agreed to the conciliation conference being relisted to this date.

• [15] On 10 August 2022 Curtin confirmed its agreement to the relisting date.

• [16] Later the same day Mr Smith filed submissions objecting to Curtin's request for leave to be represented at the Hearing of the Application.

• [17] On 11 August 2022 a Notice of Listing was issued for an in person conciliation conference to take place on 28 September 2022.

• [18] On 12 August 2022 Ms Tang emailed Chambers submissions in support of her being granted leave to be represented at the conciliation conference listed for 28 September 2022.

• [19] On 16 August 2022 Mills Oakley filed by email, copied to Ms Tang, a Form F53 - Notice of Representative Commencing to Act (Form F53).

• [20] On 17 August 2022, Mr Smith filed objections to Curtin being granted leave to be represented at the conciliation conference. The email attaching the submissions was not copied to Mills Oakley. Chambers sent an email to the parties reminding them that correspondence to Chambers should be copied to parties and representatives as a matter of transparency and courtesy.

• [21] Later the same day Mills Oakley responded to Mr Smith's email explaining that Curtin had not filed submissions seeking leave to be represented at the conciliation conference because Curtin was not seeking leave to be represented at the conciliation conference.

• [22] On 18 August 2022 Mr Smith sent the following email to Mills Oakley copied to Chambers presumably under the misapprehension that a new Form F53 must be filed on each occasion a party sought leave to be represented by a lawyer or paid agent.

"Thank you for confirmation that Mills Oakley Lawyers will not be representing the Respondent at the 28th September 2022 conciliation conference. Please confirmation, the Parties will not be served another Form F53 in the near future. Despite the fact that there is indication in the Form F53 (dated 16th August 2022) that, " Permission will be sought for participation in all future conference and hearings."

• [23] On 26 August 2022 Ms Tang informed Chambers that she believed that I should recuse myself from hearing and determining the Application. On 28 August 2022 Ms Tang made a formal application for me to recuse myself from determining the Application (Recusal Application).

• [24] In light of the Recusal Application the conciliation conference listed for 28 September 2022 was vacated.

• [25] Directions were issued to the parties on 6 September 2022 directing Ms Tang to file submissions and evidence in support of her Recusal Application and inviting Curtin to file materials in response.

• [26] On 21 September 2022 Curtin advised Chambers that they did not intend to file any materials in relation to the Recusal Application.

• [27] On 29 September 2022 Ms Tang was asked to confirm whether she was happy for the Recusal Application to be determined 'on the papers'.

• [28] On 30 September 2022 Ms Tang advised Chambers that Mr Smith "is withdrawn by the Applicant due to personal circumstances" and should be removed from all correspondence with immediate effect. In the same correspondence Ms Tang sought an adjournment of the hearing of the Recusal Application for fourteen days "to appoint a new Representative and to submit any relevant paperwork."

• [29] On 28 September 2022 Ms Tang was informed that given there were fourteen days between her request for the adjournment and the listing date and that all materials had already been filed the adjournment application was declined on the basis that two weeks provided a sufficient period of time for Ms Tang to instruct a new representative in relation to the Recusal Application.

• [30] On 10 October 2022 Ms Tang informed Chambers that she wished for the Recusal Application to be determined 'on the papers'.

• [31] The Recusal Directions directed Ms Tang to file submissions and evidence in support of the Recusal Application and invited Curtin University to file any submissions and evidence in response.

• [32] Ms Tang did not file any witness statements. Instead, she filed a document containing a mixture of submissions and evidence signed by herself and Mr Smith.

• [33] Curtin chose not to file any submissions or evidence in relation to the Recusal Hearing.

• [34] In reaching my decision, I have considered all the submissions made and the evidence tendered by the parties, even if not expressly referred to in these reasons for decision.

• [35] Ms Tang submits that I should recuse myself from any further involvement in the determination of the Application on the basis of apprehended bias.

• [36] The grounds upon which Ms Tang says that I should recuse myself are as follows:

"1.The Chambers DP BINET neglected to point out to the Respondent on 4 AUGUST 2022 in any way, shape or form that Form F53 needed to be filed and served in accordance with subsection 596(2) of the Fair Work Act 2009 (Cth), rules 11, 12 and 12A under Fair Work Commission Rules 2013 and yet the Chambers DP BINET did not hesitate to send an Official communication to the Parties to note that the Applicant did not copy the Respondent's Representative to the 17 AUGUST 2022 correspondence and point out the Rules for service of documents filed in the Commission to the Applicant; and

2.The Applicant contends that the Chambers DP BINET is bias towards the Respondent by granting extension to submit Respondent's Outline of Submissions and second conciliation requests even though they were submitted by an external Party (no Form F53 was served by the Respondent's lawyer until 16 AUGUST 2022) to this Matter on 9 AUGUST 2022; and

3.It took the Chambers DP BINET less than 2 hours from the time when the external Party requested for the extension to submit Respondent's Outline of Submissions to the time the extension was granted while it took approximately 10 hours (1.5 working days) for the Chambers DP BINET to grant the Applicant's request for extension to submit the Digital Court Book and Agreed Statement of Facts; and

4.The Applicant submitted a Request for Unpaid Representation at the Conciliation on 12 AUGUST 2022 as per Notice of Listing issued by the Chambers DP BINET on 10 AUGUST 2022 but the request has to date not been acknowledged nor responded to. On the other hand, the Respondent's representative had to only inform the Chambers DP BINET that she will be on leave from 16-26 AUGUST 2022 (without needing to provide any supporting documentation) and the Chambers DP BINET had responded to her request within 3 hours with a proposed reschedule date of 28 SEPTEMBER 2022."

• [37] Apprehended bias can only be found if it can be said a fair-minded and appropriately informed lay observer would reasonably apprehend that the decision maker might not determine the matter in an impartial and unprejudiced way:[1]

"... bias 'connotes the absence of impartiality' What constitutes impartiality is more than predilections. It requires the decision-maker's mind to be so made up or determined in favour of one conclusion, irrespective of the arguments put to him or her."[2]

• [38] Disqualification is only established if there is:[3]

"a reasonable apprehension that the judicial officer will not decide the case impartially or without prejudice, rather than that he will decide the case adversely to one party."

• [39] In ALA15 v Minister for Immigration and Border Protection[4] the Full Court of the Federal Court set out the principles for determining a recusal application noting that:

"...(a) at least the following two steps are involved in a case involving an allegation of apprehended bias:

(i) There must be an identification of what it has said might lead a judge to decide a case other than on its legal and factual merits; and

(ii) There must be an articulation of the logical connection between the matter and the feared deviation from a course of deciding a case on its merits;

(b) an allegation of bias against a judge on the basis of prejudgment is a serious matter not the least because it carries with it the suggestion that the judge has failed to honour his or her judicial oath as such might be questioned by the fair-minded observer." [FOOTNOTES OMMITTED]

• [40] It remains necessary to determine whether the apprehension is reasonable considered in the totality of all the relevant circumstances, and this is sometimes described as a third step.[5]

• [41] The test for apprehended bias has:[6]

"a flexible quality, differing according to the circumstances in which a power is exercised."

• [42] The test for apprehended bias recognises and accommodates differences between court proceedings and other kinds of decision-making.[7] The context in which the test of apprehended bias falls to be applied will clearly affect how the test is applied.[8] The fair-minded lay observer is taken to be aware of the nature of the decision and the context in which it is made as well as the circumstances leading to the decision.[9]

• [43] The context of proceedings before the FWC includes that it is a specialist tribunal established to deal with industrial matters in a practical, expeditious and effective manner. The FW Act directs the FWC to perform its functions in a manner that is fair and just and is quick, informal and avoids unnecessary technicalities.

• [44] I note that each of the grounds upon which Ms Tang relies for her Recusal Application refer to conduct of "Chambers Binet". Her submissions do not explain how this conduct might lead to a conclusion that I will not determine the Application on its legal and factual merits.

• [45] Ms Tang asserts that bias is demonstrated by Chambers not informing Curtin on 4 August 2022 that a Form F53 must be filed.

• [46] Rule 11 of the Fair Work Commission Rules 2013 (Cth) in sub rule 11(1) provides that:

"(1) If a person wants to advise the Commission that a lawyer or paid agent acts for the person in relation to a matter before the Commission, the person must lodge a notice with the Commission." [EMPHSIS ADDED]

• [47] The filing of a Form 53 is mandatory when a lawyer or paid agent seeks permission to participate in a conference or hearing.[10]

• [48] The request that Mr Smith copy Curtin's representative in on correspondence is not evidence of differential treatment of Ms Tang as opposed to Curtin or as opposed to any party appearing before me. Her submissions do not explain how this conduct might lead to a conclusion that I will not determine the Application on its legal and factual merits. For the purposes of transparency and courtesy any party or representative who does not copy the other party and their representative on communications with my Chambers are reminded to do so.

• [49] The granting of an extension to Curtin to file its materials is not evidence of differential treatment of Ms Tang as opposed to Curtin or as opposed to any party appearing before me. Her submissions do not explain how this conduct might lead to a conclusion that I will not determine the Application on its legal and factual merits.

• [50] The Directions provided the parties with seven days to file their materials. This is usually sufficient time for the parties to prepare their materials in applications of this nature. The volume of materials filed by Ms Tang were significantly greater than normally filed by applicants in applications of this nature. I was satisfied that granting an extension to Curtin was appropriate in the circumstances. Ms Tang requested and was granted an extension of time to file the Agreed Statement of Facts and the Digital Court Book.

• [51] The listing of the Application for a Conciliation Conference is not evidence of differential treatment of Ms Tang as opposed to Curtin or as opposed to any party appearing before me. Her submissions do not explain how this conduct might lead to a conclusion that I will not determine the Application on its legal and factual merits.

• [52] The Directions offered either party the opportunity to seek a conciliation conference. Curtin indicated that it wished to have a conciliation conference listed. The conciliation conference was listed. Curtin sought an adjournment of the conference and both parties were invited to confirm if they wished to participate in conciliation on an alternative date.

• [53] Ms Tang has not explained how a difference of hours in response times between a response by Chambers to correspondence from Curtin from a response from Chambers to correspondence from Ms Tang might lead to the conclusion that I will not determine the Application on its legal and factual merits. Response times to correspondence to Chambers while always endeavouring to be prompt may vary according to the complexity of the correspondence, the workload of the Associate or whether I am engaged in other proceedings.

• [54] Ms Tang has not explained how the lack of a determination of her request to be represented by Mr Smith might lead to the conclusion that I will not determine the Application on its legal and factual merits. It was unnecessary to make such a determination because the Conciliation Conference was vacated to allow the Recusal Application to be determined.

• [55] Having considered the submissions of the parties, the evidence tendered and the relevant authorities I am satisfied that it is not appropriate to recuse myself.

[1] Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 at [6].

[2] Metro Trains Melbourne Pty Ltd v ARTBU, CEPU, APESMA [2013] FWC 4034 at [32].

[3] Re JRL; Ex parte CJL [1986] HCA 39; (1986) 161 CLR 342 at 352; Resmed Ltd v AMWU [2015] FCAFC 106; (2015) 232 FCR 152 at [32].

[4] [2016] FCAFC 30 at [35]- [36].

[5] CNY17 v Minister for Immigration and Border Protection [2019] HCA 50, 268 CLR 76 at [21] per Kiefel CJ and Gageler J.

[6] Isbester v Knox City Council [2015] HCA 20; (2015) 255 CLR 135 at [22]- [23].

[8] Cabcharge Australia Ltd v ACCC [2010] FCAFC 111 at [25].

[9] Hot Holdings Pty Ltd v Creasy [2002] HCA 51; (2002) 210 CLR 438 at [68]; Isbester v Knox City Council [2015] HCA 20; (2015) 255 CLR 135 at [23].

[10] Fair Work Act Rules 2013 (Cth) see Rule 12A.

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