Fair Work Act 2009

s.527F - Application for an order to stop and deal with a sexual harassment dispute

Mr Thanh (Johnny) Lam, Bivefa Pty Ltd T/A Tiamo

Application for an order to stop and deal with a sexual harassment dispute - recusal application

[1] On 18 September 2025, Ms Thitima Kiadkobsakul (the Applicant) filed an application pursuant to s 527F of the Fair Work Act 2009 (the Act) seeking that the Fair Work Commission deal with a sexual harassment dispute. The application concerns Bivefa Pty Ltd T/A Timo (the First Respondent), and Mr Thanh (Johnny) Lam (the Second Respondent).

[2] The application seeks that the Commission make a stop sexual harassment order and otherwise deal with the dispute. However, it transpired that the Applicant no longer works for the First Respondent and she appears to concede that there is no risk that she will continue to be sexually harassed in contravention of the Act. As I understand it, she therefore no longer seeks a stop sexual harassment order but asks the Commission to otherwise deal with the dispute.

• [3] In these circumstances, the Commission will ordinarily attempt to deal with the dispute by conducting conciliation within a private conference[1]. If, after having dealt with the dispute in this or in some other way (other than by arbitration), the Commission is satisfied that all reasonable attempts to resolve the dispute have been, or are likely to be unsuccessful, then the Commission must issue a certificate to that effect[2]. The matter may subsequently be the subject of a sexual harassment court application.

[4] The Commission conducted three conferences in relation to this application. The first was conducted on 22 October 2025. The First Respondent contends that during this conference the parties reached binding terms of settlement. The Applicant contends that no binding terms of settlement were or have been reached.

[5] Further conferences were held on 2 December 2025 and 23 December 2025. The matter was not resolved. Taking into account the discussions in these conferences I am satisfied that all reasonable attempts to resolve the dispute have been or are likely to be unsuccessful.

[6] In ordinary circumstances, I would now proceed to issue the Applicant with a certificate to this effect, pursuant to s 527R(3) of the Act. However, the First Respondent submits that the Commission is not empowered to issue a certificate in this matter and rather should dismiss the application pursuant to its general right to do so, because it says the parties reached binding terms of settlement in relation to it. It has become necessary to resolve this controversy.

[7] After having directed the parties to file materials in relation to this issue, I listed the matter for a hearing to be conducted on 31 March 2026. The Applicant was represented at hearing by Mr Aleksov of Counsel having been granted permission pursuant to s 596 of the Act to be represented by a lawyer. The First Respondent was represented by Mr Dixon from the Australian Industry Group. The Second Respondent was not represented at the hearing.

[8] At the commencement of the hearing, the Applicant made an application that I should disqualify myself from hearing the matter on the ground of apprehended bias (the recusal application). This decision deals with that application.

[9] In order to determine the recusal application, it has been necessary for me to have regard to the matter the Commission would otherwise be required to determine. Prior to hearing, both parties filed written submissions and several statements of evidence relating to the question as to whether a binding settlement agreement had been reached at the conference on 22 October 2025. Statements of evidence were filed for the First Respondent by Ms Hawking, Ms Succi and Ms Skordakis. Statements were also filed by the Applicant, Mr Halantas and Mr Tran. As it is necessary to deal with the recusal application, none of these statements have been taken into evidence in this matter, but I have had regard to them in determining the recusal application. A summary of the matters which I consider relevant is set out below. I have also had regard to short oral submissions made by Mr Aleksov in support of the recusal application.

• [10] It appears both parties agree that it is necessary for the Commission to determine whether an enforceable agreement to resolve the matter was entered into, or not. They also appear to agree that if a determination is made that no such enforceable agreement was reached, the Applicant should be issued with a certificate pursuant to s 527R(3) of the Act. The First Respondent submits that if it is determined that an enforceable agreement was reached, I should dismiss the application pursuant to the Commission's general power to do so[3]. I do not understand that the Applicant takes issue with that proposition[4].

[11] A private conference was held in the Commission on 22 October 2025. The Applicant was not represented but assisted by a support person, Mr Tran. She was also assisted by a Thai interpreter. At a point during the conference Mr Halantas, who was overseas at the time, was dialled into the conference and assisted the Applicant by phone as a further support person.

[12] The First Respondent was represented by Ms Hawking, described as its "representative". The Second Respondent was not represented but sat with the representatives present from the First Respondent throughout the conference.

[13] The parties were not together at any stage during the conference, and I conveyed various communications back and forth between the parties, when authorised to do so. A discussion ensued about the matter being settled on a financial basis and eventually the Applicant indicated she would accept an offer made by the First Respondent to resolve the matter on the basis she be paid the sum of $5,000.00. This was conveyed to the First and Second Respondents, who were together in another room.

[14] Some of the witnesses mention in their statements of evidence the basis upon which one or other of the parties made decisions as to positions they adopted during this negotiation. At this stage it appears to me these assertions do not bear on the question the Commission is required to answer. I do not understand it to be in contest that the First Respondent offered to resolve the matter on the basis it would pay the Applicant the sum of $5,000.00 and the Applicant said she would accept that offer, to be conveyed to the First Respondent, as it was, through me.

[15] Not a great deal is said in any of the statements of evidence filed about the other terms upon which the matter was apparently resolved.

• [16] Ms Hawking says in her statement that she "asked the Fair Work Commission to draft the terms and conditions of the Settlement Agreement and provide them to both parties"[5]. Ms Skordakis, the First Respondent's payroll and bookkeeper, says "both parties asked that the Fair Work Commission draft the terms of settlement and send it to both parties"[6]. Mr Succi says in his statement it "was agreed that the terms of the agreement would be set out in a document which both parties agreed should be drawn up by the Fair Work Commission so that there would be no ongoing dispute about how it was worded"[7]. The Applicant says the "Commissioner said he would send me a paper the next day. He said after I sign and both parties sign, the money would be transferred to my account within 7 days ..."[8]. Mr Tran says in his statement the "Commissioner told Thitima that he would give all the documents, and she will sign it on the email, and they will send everything on the email. He said after they sign everything, Thitima would get the money"[9].

[17] These assertions refer to an offer made by me at the conclusion of the conference to provide the parties with a Fair Work Commission "template" terms of settlement document, produced by my chambers.

[18] On 23 October 2025, my chambers sent correspondence to the parties. The email contained a document entitled "TOS - SH2025 160" completed with the names of the parties and the settlement sum that had been agreed at the conference (the settlement document). The email said:

A conference was conducted by Commissioner Redford in relation to this matter yesterday.

During the conference, the parties reached a settlement in relation to the matter.

The parties agreed to reduce the terms of their settlement to writing.

For this purpose, the parties agreed to use a template document supplied by the Fair Work Commission. That document is attached.

Both parties should read this document carefully and if necessary, obtain legal advice. If there are changes to be proposed to the document, these should be sent via reply email to chambers and copying in the other party.

If a disagreement emerges as to the document that cannot be resolved via email, the Commissioner will convene a short on-line conference to assist the parties to resolve the matter, taking into account there appeared to be a clear agreement to a final settlement of the matter at the conference yesterday.

If the Applicant is happy with the document, and requires no changes, she should sign where indicated, with a witness present (which can be any person - who should also sign where indicated). This should then be returned to the Respondent for counter-signature."

[19] The settlement document attached to this email was entitled "Terms of Settlement (Agreement)" and copies of the document are contained as an annexure to several of the statements of evidence filed. The document refers to Ms Kiadkobsakul who is referred to as the "Applicant", and Bivefa Pty Ltd (t/a Tiamo) as "the Respondent". It describes "the conduct" as the allegation that Mr Lam engaged in sexual harassment for which the First Respondent is vicariously liable. The settlement document provides that the First Respondent is to pay the Applicant an "employment termination payment in the amount of $5000.00 (gross/before tax) and to provide her with a reference detailing her period of employment, job title, duties and a position statement as to her work performance and conduct. The document contains a "mutual release" in which "the parties" "release and forever discharge and release the other (including in the case of the Respondent, its directors, employees, assignees or successors) from any liability past, present or future from all claims, actions or proceedings arising out of the employment" with stated exceptions in respect to workers compensation and superannuation. It contains a clause in which the Applicant and Respondent agree they will not disclose to any other person any settlement amount paid, negotiations leading to the signing of the agreement, the existence of the agreement, the fact the Applicant is a complainant, the fact that Mr Lam is the alleged perpetrator of the conduct and the circumstances of a dispute between the parties to the extent they identify the Applicant. There are stated exceptions to this confidentiality arrangement, allowing for disclosure to be made to legal medical or financial advisers, immediate family members or any other person that by law must be informed of the provisions. The document also provides that the Applicant is to file a notice of discontinuance within seven days of receipt of the payment.

• [20] The Applicant asserts specifically in her statement of evidence that there had been no discussion at the conciliation conference (and thus no agreement) as to several aspects of matters contained within the settlement document, including no mention of confidentiality, that the application would need to be withdrawn after the payment was made or how the amount was taxed. She also says "I thought it was only finished with Tiamo not Johnny and other organisations too"[10]. Mr Tran says in his statement "I do not remember anything about confidentiality. I do not remember anything about Thitima withdrawing her claim if she signed"[11]. Mr Halantas says "I do not recall any mention of confidentiality or Thitima not being able to tell people about Johnny. I don't recall anything being said about withdrawing her claim"[12].
• [21] None of the First Respondent's statements of evidence assert that terms such as confidentiality or the scope of the mutual release were discussed at the conference. The only thing approaching a positive assertion in this regard is from Mr Succi who says in his statement "it was my clear understanding and intent that the claim was settled and at an end"[13].

[22] On 3 November 2025, Ms Skordakis emailed my chambers advising that no response had been received from the Applicant and querying if any correspondence received by the Commission. This correspondence was not copied to the Applicant.

[23] On 5 November 2025, my chambers emailed the parties as follows, seeking an update:

On 23 October 2025, the Commission corresponded with the parties in relation to this matter and supplied a terms of settlement document reflecting the agreement that had been reached during conference.

The Commission had expected that by this time the settlement would have been executed, and the Applicant, Ms Kiadkobsakul, to have confirmed the matter is discontinued.

The Applicant, Ms Kiadkobsakul, is requested to urgently advise, via return email, the status of this matter, and whether it is discontinued."

[24] Five days later, on 10 November 2025, my chambers sent a follow up email requesting a response from the Applicant which said:

I refer to the email below and request an urgent response from the Applicant by no later than 4:00PM tomorrow, 11 November 2025.

On 23 October 2025, the Commission corresponded with the parties in relation to this matter and supplied a terms of settlement document reflecting the agreement that had been reached during conference.

The Commission had expected that by this time the settlement would have been executed, and the Applicant, Ms Kiadkobsakul, to have confirmed the matter is discontinued.

The Applicant, Ms Kiadkobsakul, is requested to urgently advise, via return email, the status of this matter, and whether it is discontinued.

If no update is provided by 4:00PM tomorrow, 11 November 2025, the matter will be listed for mention arising from the Applicant's failure to respond."

[25] On 11 November 2025, at 2:29PM, the Applicant responded to the above email and said "Dear Sirs or Madams, I am sorry for the late of my response. I have signed and attached the agreement of the matter to this email." A copy of the settlement document was attached, signed by the Applicant. The First Respondent was not copied into the email.

[26] My chambers responded to the Applicant at 2:37PM advising her to provide a copy of the settlement document to the First Respondent. At 3:05PM the Applicant responded, "Do I have to send the document to the Respondent myself?" At 3:07PM, my Chambers responded to the Applicant confirming she should send the settlement document to the First Respondent and reminding her to use the reply all function.

[27] At 3:12PM, the Applicant advised she had "replied all" to the previous email. My Chambers responded at 3:42PM this time copying in the other parties so that the Applicant could reply all to that email and thus provide a copy of the settlement document to the First Respondent. At 6:00PM, the Applicant "replied all" to the email and a copy of the settlement document was provided to the First Respondent.

[28] On 13 November 2026, the Applicant sent the following email to the parties:

I write to advise that I have been able to obtain legal advice for the first time this morning to understand the consequences of signing the proposed settlement agreement.

Now that I understand the agreement, I no longer wish to settle on the terms proposed in the deed and I withdraw my consent."

[29] On 17 November 2025, the First Respondent sent an email containing an executed copy of the settlement document. There was no text in the body of the email, simply the attachment.

[30] On 18 November 2025, the First Respondent sent the following to my chambers, not copying in the Applicant:

We Bivefa Pty Ltd trading as 'Tiamo' haver signed the Terms of Settlement (Agreement) Case No SH2025/160 and are awaiting further instructions on how to proceed to settle the matter."

[31] On 19 November 2025, my chambers sent the following email to the parties:

On 18 September 2025, Ms Kiadkobsakul made an application under s 527F of the Fair Work Act 2009 asking the Commission to make a stop sexual harassment order and to otherwise deal with a dispute about sexual harassment. The application involved Bivefa Pty Ltd.

On 22 October 2025, a conciliation conference occurred before Commissioner Redford in relation to Ms Kiadkobsakul's application.

During the conference, the parties reached a settlement in relation to the matter (see the Commissioner's email of 23 October 2025).

On 11 November 2025, Ms Kiadkobsakul signed a terms of settlement document in relation to the settlement.

That settlement document has now been signed by Bivefa Pty Ltd as well.

However, on 13 November 2025, Ms Kiadkobsakul sent an email saying she no longer wishes to settle on the terms proposed in the deed and she "withdraws her consent".

The terms of settlement document, now signed by both parties, says:

"By signing this Agreement, the Applicant acknowledges and is taken to have advised the Commission that the matter in respect to the Respondent is settled and that the matter can be closed by the Commission"

In the circumstances, the Commissioner proposes to close the Commission's file in relation to this matter. If either party wishes to comment on this proposed course of action, this can occur via return email to chambers. Any such comment must be received no later than 4:00PM Friday 20 November 2025. The Commissioner will take into account any comment made by the parties before proceeding to close the file."

[32] On 20 November 2025, my chambers received an email from a solicitor at Victoria Legal Aid (VLA) which advised it was assisting the Applicant and would provide a response to the earlier correspondence from my chambers by 21 November 2025.

[33] Later, on 20 November 2025, the First Respondent sent an email advising that they had "fulfilled their part of the agreement. Thitima's Termination pay was processed along with the weekly payroll for all staff. This should have reflected in her account to day or tomorrow the latest."

[34] On 21 November, VLA contacted provided a response as foreshadowed:

Thank you for the opportunity to address the Commission on the issue of whether this complaint ought to be closed.

It is our submission that Ms Kiadkobsakul's complaint should not be closed, the settlement agreement should be set aside, and the complaint should continue to a further conciliation, based on the following factors.

1. No binding agreement was formed between Ms Kiadkobsakul and the Respondent at the conciliation on 22 October 2025.
2. Whilst the parties agreed on a settlement sum on 22 October 2025, the terms of the agreement were not discussed or agreed upon at the conciliation.
3. Specifically, there was no agreement about confidentiality, non-disparagement, or release terms. Ms Kiadkobsakul did not know about these aspects of the agreement until the proposed written agreement was provided to her.
4. The terms of the agreement were first put to the parties when the proposed settlement agreement document was provided on 23 October 2025.
5. As such, there was no finality of the agreement until both parties signed the settlement agreement.
6. Ms Kiadkobsakul signed the settlement agreement on 11 November 2025.
7. Ms Kiadkobsakul informed the Commission and the Respondents that she withdrew her consent to the agreement on 13 November 2025, prior to the Respondent signing. We note also that the Respondent did not date the agreement, strongly indicating that it was signed after Ms Kiadkobsakul withdrew her consent to the agreement.
8. Therefore, Ms Kiadkobsakul withdrew her consent to the agreement prior to finality and there is no enforceable agreement between the parties.
9. Moreover, the Respondent did not pay Ms Kiadkobsakul within the 7 days stipulated within the signed settlement agreement, demonstrating that the Respondent relied on her withdrawal of consent.

1. Ms Kiadkobsakul speaks English as a second language. She communicates well using simple English, however, requires assistance to understand complicated English, particularly around understanding and enforcing her legal rights.
2. The Respondent and Commission were on notice of this because Ms Kiadkobsakul was assisted at the Fair Work Commission conciliation by a Thai interpreter.
3. Despite the Thai interpreter being present, the terms of the agreement were not discussed whilst Ms Kiadkobsakul had the benefit of assistance from an interpreter.
4. When Ms Kiadkobsakul received the proposed settlement agreement, she used Google Translate to translate the document into Thai. This raises concerns about her understanding of the document prior to signing, and the accuracy of the translation.

1. Ms Kiadkobsakul has been suffering physical and mental ill health arising from the incidents detailed in this claim. She is suffering from significant anxiety which has caused physical symptoms including severe headaches, nausea, and vomiting.
2. She is currently taking Duloxetine and Quetiapine daily. She was taking these medications when she attended the conciliation and when she signed the settlement agreement.
3. Ms Kiadkobsakul required hospitalisation to manage her physical ill health, arising from her mental health.

1. Ms Kiadkobsakul felt pressure to sign the settlement agreement before obtaining legal advice in the context that she was experiencing significant mental health issues that impacted her physical health such that she required hospitalisation.
2. Ms Kiadkobsakul contacted Victoria Legal Aid for legal advice on 21 October 2025. Due to service capacity, she was booked in for a legal advice call on 13 November 2025.
3. After the Fair Work Commission conciliation on 22 October 2025, Ms Kiadkobsakul did not want to sign the settlement agreement because she did not feel it was a fair outcome, and it was causing her additional stress and anxiety.
4. Ms Kiadkobsakul wished to wait until she obtained legal advice on 13 November 2025 before signing the deed.
5. However, Ms Kiadkobsakul received an email from the Fair Work Commission on 5 November 2025 seeking an update on the matter. She received a further email on 10 November 2025 requesting a response from her by 4pm on 11 November 2025, otherwise a Directions Hearing would be listed.
6. In those circumstances, Ms Kiadkobsakul felt she had no choice but to sign the settlement agreement.

1. Ms Kiadkobsakul seeks for the settlement agreement to be set aside and for the matter to be listed for further conciliation."

[35] I sought parties' views then proceeded to list the matter for a further conference, on 2 December at 3:00PM in person, to discuss the several matters raised by the Applicant's representatives. The matter was not resolved at this conference.

[36] The matter was listed for a further conference on 23 December 2025. On 17 December 2025, my Chambers was notified that Australian Industry Group (AIG) would be acting on behalf of the First Respondent and the Second Respondent would be represented by Nguyen Do Lawyers.

[37] I conducted a conference on 23 December 2025. No resolution was reached at the conference, and it became evident that the controversy concerning the settlement document required determination. The matter was programmed for hearing and directions made for the filing of written material as outlined above.

• [38] I have dealt with this matter consistent with the manner in which applications that a member of a Court or Tribunal are recused from a proceeding are dealt with in Australia[14].
• [39] The principles relating to an application that a member of an Australian Court or Tribunal recuse themselves as a result of actual or apprehended bias are well established. To establish actual bias on the basis of pre-judgement, it must be demonstrated that there is a commitment to a "conclusion already formed" of such a nature that it is incapable of alteration "whatever arguments may be presented"[15]. The test in relation to apprehended bias is whether a fair-minded lay observer might reasonably apprehend that the Judge or Tribunal member might not bring an impartial mind to the resolution of the question they are required to decide[16].
• [40] This test has been articulated by a Full Bench of this Commission as involving a two-step process: first, the factor which is said might lead to a Judge or a Tribunal member to decide a case other than on its legal or factual merits must be identified; and second there must be an articulation of the logical connection between the matter and the apprehended deviation from the course of deciding the case on its merits[17]. The High Court recently described the test as having three steps, as follows[18]:

"The correct application requires: "(1) identification of the factor which it is said might lead a judge to resolve the question other than on its legal and factual merits; (2) articulation of the logical connection between that factor and the apprehended deviation from deciding that question on its merits; and (3) assessment of the reasonableness of that apprehension from the perspective of a fair-minded lay observer"."

• [41] These tests are based on important public policy considerations associated with the proper administration of justice[19]. Parties involved in litigation before a Court or Tribunal are entitled to expect that the person presiding will be independent and judicial independence "must be predicated of any influence that might tend, or be thought reasonably to tend, to a want of impartiality in decision making" [20], including subconscious (or unconscious) bias[21]. As has often been said "justice should both be done and be seen to be done"[22]. Or, as Isaacs J put it:

" ... if the person whose presence is challenged can fairly be said to be biassed, either by reason of his necessary interest or by reason of some pre-determination he has arrived at in the course of the case, then he ought not to act unless there is something to relieve him from these disqualifications"[23].

• [42] The test in relation to apprehended bias is based on the apprehension of a hypothetical "fair minded lay observer". Thus, bias need not necessarily be actual, or probable, but possible[24] - based on the fair-minded lay observer's perspective. This "lay" person is "not to be assumed to have a detailed knowledge of the law or the character of a particular judge", but:

"may be taken to understand that the judge, by reason of professional training and experience and fidelity to the judicial oath or affirmation, will have a greater capacity than most to discard "the irrelevant, the immaterial and the prejudicial" ..."[25]

• [43] The fair minded observer is also taken to have knowledge of the material facts of the case and relevant context, including the fact that the Commission is a specialist tribunal established to deal with matters in a practical, expeditious and effective manner and is required to perform its functions in a manner that is fair and just and is quick, informal and avoids unnecessary technicalities[26].
• [44] Disqualification on the ground of apprehended bias must must be "firmly established", and a finding of apprehended bias is not to be reached lightly[27]. Members of the Commission have a duty to sit[28] and substantial grounds must be established if this is otherwise to be the case[29]. Or as the High Court has said:

"... Although it is important that justice must be seen to be done, it is equally important that judicial officers discharge their duty to sit and do not, by acceding too readily to suggestions of appearance of bias, encourage parties to believe that by seeking the disqualification of a judge, they will have their case tried by someone thought to be more likely to decide the case in their favour."[30]

• [45] It is well established that apprehension that an issue may be decided adversely to a party does not constitute an apprehension that the issue might be determined other than impartially[31].

[46] At the crux of the recusal application are the following propositions. First, it is said that the Applicant will give sworn evidence in this matter, including about what was said and agreed to at the conciliation conference on 22 October 2025. This is obviously the case, given the statement of evidence she has filed.

[47] Secondly, it is said the Applicant will be cross examined about her evidence. Mr Dixon has confirmed this is the case.

[48] Thirdly, it is said that part of this cross examination may be directed to what the Applicant says was said and agreed to at the conference. Mr Dixon was less clear on this point, but it appears this may be a possibility.

[49] Fourthly, it is said that in these circumstances, the Applicant may give evidence, which is inconsistent with knowledge in my possession, given I was present at the conference and heard what was said.

[50] Fifthly, it is said that if the Applicant is cross-examined and says something inconsistent under cross examination which is inconsistent with knowledge in my possession, this may damage her credibility, impugning the evidence she gives in relation to the central question to be decided - whether an enforceable agreement was made or not.

• [51] For example, the Applicant says that no enforceable agreement was reached because essential or critical terms were left to be settled by future agreement of the parties[32]. There are several matters which are said to be significant which were not discussed or agreed upon: confidentiality of the terms of settlement (or about other matters); the terms and breadth of the release (including in respect to the Second Respondent); how the settlement sum would be characterised (including with respect to taxation); there may be others[33]. The Applicant's statement of evidence says these matters were not discussed. It was said for the Applicant that there is a possibility she may be asked questions in cross examination about whether her assertion that these matters were not discussed is true. It should be noted that Mr Dixon, for the First Respondent was somewhat unclear on this point: I took him to say it is more likely he may seek to make submissions about these things, rather than put contradictory propositions to the Applicant in cross examination. For the purposes of the example though, it might be assumed there is a possibility the Applicant will be asked questions requiring her to confirm this evidence. What is submitted is that when she does so, if the Commission is in possession of knowledge that contradicts this evidence, because I was present in the conference, the Applicant's credibility will be impugned. This is said to present a logical connection between the "factor", and the apprehended deviation from deciding the case on its merits, because if the Commission has concerns about the Applicant's credibility, her evidence as to the absence of an agreement at conference may not be accepted, and the First Respondent's assertion that a binding agreement was made will prevail.

[52] As I understand the Applicant's submissions, the "factor" which it is said might lead me to resolve this matter other than on its legal and factual merits is what I may know about what was said and perhaps agreed by the parties at the conference on 22 October 2025. The logical connection between this factor and the apprehended deviation from deciding the issue on its merits is the possibility that what I know about what was said and perhaps what was agreed differs from the evidence given by the Applicant, damaging her credibility. As I understand it, it is said that from the perspective of a fair-minded lay observer, it is reasonable to apprehend that on this basis, I might deviate from deciding the issue on its merits.

[53] On one view, the possibility the Applicant's evidence will be impugned by damage to her credibility arising from knowledge in my possession, about which I cannot be cross examined, might appear to create a risk for her which points obviously towards my disqualification being a prudent measure.

[54] However, it must be established that from the perspective of the fair-minded lay observer it is reasonable to apprehend that the result of this problem - the possible impugnation of the Applicant's evidence - may result in a deviation from a decision of the issue on its merits.

• [55] In my view, I do not consider this to have been made out. As mentioned above, the fair minded observer is taken to have knowledge of the material facts of the case and relevant context, including the fact that the Commission is a specialist tribunal established to deal with matters in a practical, expeditious and effective manner and is required to perform its functions in a manner that is fair and just and is quick, informal and avoids unnecessary technicalities[34]. In this matter no witness says that matters such as confidentiality; the terms and breadth of the release; whether the Second Respondent was party to the Agreement; how the settlement sum would be characterised (including with respect to taxation); were matters of discussion between the parties at the conference. The formation of a contract requires two parties. Even if the Applicant's evidence to this effect was impugned by damage to her credibility, there is no assertion made in the First Respondent's statements that these matters were the subject of discussion with the First or Second Respondents and their representatives at the conference. The argument which the Applicant wishes to mount - that if there was no discussion about these matters by any party, there could be no agreement - is not affected by the hypothetical damage to her credibility caused by knowledge that may be in the possession of the Commission.

[56] Several further points must be made. First, the Applicant says she was not aware of the "standard" terms of settlement. As I understand it, the First Respondent says it should be inferred that by agreeing to accept a financial amount, the Applicant should be taken to have understood that agreement would also involve "standard" terms, like a full and final release (of a scope beyond simply the proceeding itself), confidentiality or other terms. The Applicant says she did not understand these things and did not know about them until at least she saw the terms of settlement document. As I understand it, the Applicant says further that if her credibility is impugned by giving evidence contradictory to knowledge in the possession of the Commission, then it is possible her evidence as to this lack of understanding may not be accepted. By implication it must say that it is possible the Commission might find she did know about these types of matters being "standard", even though she says she did not.

[57] In my view, these propositions also stretch the bounds of reasonableness. Evidence given by a witness whose credibility is in question will not necessarily be impugned in its entirety. In my view, it is difficult to imagine how it might be said that Ms Kiadkobsakul, who has English as a second language, who was assisted in these proceedings by an interpreter and who has no particular legal or commercial knowledge, should be assumed to have familiarity with the "standard" terms of settlement. I cannot imagine how this submission could properly be made even if Ms Kiadkobsakul's credibility was impugned. I do not consider it reasonable that a fair minded lay observer would apprehend that a deviation may occur from deciding the question to be determined on its merits, arising from these propositions.

[58] Secondly, it should be noted that the Applicant says that, not having reached a binding settlement agreement at conference, her decision to sign and return the terms of settlement document cannot be said to constitute her acceptance of an offer giving rise to an enforceable contract. The Applicant argues that her having signed the document must be considered an "offer" of terms for acceptance by the First Respondent - and cannot by anything else, given that there was no agreement reached prior. This submission is part of the Applicant's refutation of the proposition that her conduct in signing the agreement is "post contractual conduct" indicative of an agreement having been reached at conference (which is what is asserted by the First Respondent).

[59] I can see no way how, if the Applicant's credibility was impugned in this matter, her ability to argue this point is impeded. Her having signed the terms of settlement document cannot be (and is not) denied. Her argument is that this conduct is not indicative that an enforceable agreement was reached at conference, on the basis of the discussions at the conference and in particular, what was not discussed (and agreed). Above I have dealt with the extent to which damage to the Applicant's credibility impedes her ability to make the submissions she wishes to make about what happened at the conference. The extent to which her conduct in having signed the terms of settlement document impacts upon that does not give rise to a question relevant to her credibility.

[60] This is not to say that I have determined the question as to whether there was an enforceable settlement reached in relation to this matter on 22 October 2025, based on the evidence as to what was said, discussed and agreed to at the conference or having regard to conduct which happened afterwards. I can reach no conclusion about these matters without first having heard the evidence and the submissions of the parties.

[61] A final matter must be dealt with. The Applicant also submitted that my disqualification in this matter is warranted to ensure the appearance of the proper administration of justice. It was said that in circumstances where I am not a "compellable witness" but may be in the possession of relevant evidence, there is an "appearance problem" because of relevant evidence being denied. It was conceded that if I am to disqualify myself, and a different member of the Commission is called upon to determine the matter, this problem remains. But it was submitted at least in this circumstance there is not the appearance of a tension.

• [62] While it is well established that the tests as to the question of apprehended bias are based on important public policy considerations associated with the proper administration of justice[35], for the reasons outlined above, I do not consider that in this matter those tests are made out.
• [63] Disqualification on the ground of apprehended bias must must be "firmly established", and a finding of apprehended bias is not to be reached lightly[36]. Members of the Commission have a duty to sit[37] and substantial grounds must be established if this is otherwise to be the case[38]. In this matter, a confined question exists as to whether a binding settlement was reached on 22 October 2025, and the evidentiary position in relation to that question which is disclosed by the parties' statements of evidence shows it is of limited compass. Even if the Applicant made a statement under cross examination inconsistent with something within the knowledge of the Commission (a possibility I consider to be extremely remote) she is not impeded from articulating the basis upon which she says the Commission cannot find that a binding settlement was reached, as she puts the case. The recusal application is dismissed, and the matter will be re-listed for hearing.

[1] See Fair Work Act 2009 s 529R(1) and (2)

[2] Fair Work Act 2009 s 529R(3)

[3] First Respondent's Outline of Submissions, 23 February 2026 [33], [38]

[4] Applicant's Outline of Submission Power To Dismiss Under s587, 16 January 2026 [3]

[5] Witness Statement of Kate Hawking 20 February 2026 [8]

[6] Witness Statement of Alice Skordakis, 19 February 2026 [10]

[7] Witness Statement of Fabrizo Succi, 19 February 2026 [14]

[8] Witness Statement of Thitima Kiadkobsakul, 17 March 2026 [26]

[9] Witness Statement of Huy Hoang Tran, 17 March 2026 [10]

[10] Witness Statement of Thitima Kiadkobsakul [27]

[11] Witness Statement of Huy Hoang Tran [11]

[12] Witness Statement of Adam Halantas 17 March 2026 [10]

[13] Witness Statement of Fabrizo Succi, [14]

[14] Ebner v Official Trustee [2000] HCA 63; (2000) 176 ALR 644 [74] (Ebner); QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs & Anor [2023] HCA 15 [88]; [121] - [130] (QYFM); Sunshineloans v Australian Securities & Investments Commission [2026] HCA 8 (Sunshineloans)

[15] Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507 [71] - [72]

[16] Woodside Energy Ltd v The Australian Workers' Union [2022] FWCFB 192 [38] (Woodside); Ebner [6]

[18] Sunshineloans [1] per Gageler CJ and Gleeson J; [60] per Gordon J

[21] Ibid [70]; [117]; [248]; [266]

[23] Dickason v Edwards [1910] HCA 7; (1910) 10 CLR 243 [260]

[24] Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425 [435

[26] Application by Mining and Energy Union re Mangoola Open Cut Coal Mining Operation [2025] FWC 779 [32] (Mining and Energy Union)

[30] Re JRL; ex parte CJL [1986] HCA 39; (1986) 161 CLR 342 [352]

[32] Applicant's Outline of Submission, 17 March 2026 [31]

[34] Application by Mining and Energy Union re Mangoola Open Cut Coal Mining Operation [2025] FWC 779 [32] (Mining and Energy Union)

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