s.394 - Unfair dismissal

Application for recusal on ground of apprehended bias - first instance unfair dismissal and reinstatement decision - appeal of first instance decision upheld - application remitted to first instance decision maker for rehearing - whether first instance credit findings disqualify member - application dismissed.

• [1] On 14 June 2024, I issued a decision which found that Paramjit Brownson had been unfairly dismissed by the Australian International Islamic College Ltd (Islamic College).[1] I ordered the Islamic College to reinstate Ms Brownson and made orders regarding compensation and continuity of employment.

• [2] The Islamic College lodged an appeal against my decision and orders. The appeal was upheld by a Full Bench on 20 December 2024.[2] The Full Bench found that I erred in failing to have regard to evidence led by witnesses from the Islamic College about Ms Brownson's conduct. The Full Bench quashed the first instance decision and order and remitted the matter back to me for rehearing. It does not appear that either party made submissions to the Full Bench regarding whether the application should be remitted to me if the appeal was upheld.

• [3] I listed a Mention/Directions hearing via video on 23 January 2025 to discuss the rehearing of Ms Brownson's application. During that proceeding, the Islamic College requested an opportunity to file additional evidence in relation to Ms Brownson's application. I agreed to the Islamic College's request and issued directions for the filing of additional evidence and submissions by both parties. The parties agreed at the Mention/Direction that evidence admitted in the initial case would be treated as evidence for the rehearing.

• [4] Ms Brownson filed further submissions concerning the rehearing of her application on 14 February 2025.

• [5] On 25 February 2025, I agreed to a request from the Islamic College to extend the due date for the filing of its further material.

• [6] On 10 March 2025, I agreed to a further request from the Islamic College to extend the due date for its further material. The due date was extended to 18 March 2025.

• [7] On 18 March 2025, the Islamic College notified my chambers that it was making an application for me to recuse myself from rehearing Ms Brownson's application on the ground of apprehended bias.

• [8] I issued directions for the filing of submissions by the parties and listed the recusal application for hearing via video on 26 March 2025.

• [9] Mark Moorhead (Industrial Services Officer - Independent Education Union) represented Ms Brownson at the recusal hearing. R W Haddrick of counsel represented the Islamic College instructed by Nicole Visedo from Citation Legal. Permission for the Islamic College to be represented has previously been granted.

• [10] The Islamic College relied on outlines of submissions dated 20 March 2025 and 21 March 2025.

• [11] The Islamic College's submissions identified that I made the following findings in the initial decision:

a) Ms Brownson presented as a truthful and credible witness.

b) Ms Brownson's evidence was not undermined in cross-examination, and she had no history of dishonesty.

c) The credibility of Ms Brownson's evidence was strengthened because she made various admissions.

d) I was "astounded" that the Islamic College preferred the evidence of Student B and Student C instead of Ms Brownson's evidence in relation to three allegations.

e) I accepted Ms Brownson's evidence concerning each allegation.

f) I found Mr Hanif had provided vague hearsay evidence.

g) Ms Brownson's confidentiality breach was extremely minor.

h) I was not satisfied there was a valid reason for Ms Brownson's dismissal.

1. I was satisfied Ms Brownson's dismissal was unjust and unreasonable.

j) Even if I had found there was a valid reason for dismissal, I would have found that the dismissal was harsh.

k) I decided the Islamic College should reinstate Ms Brownson.

• [12] The Islamic College relied on prejudgment as the relevant species of apprehended bias in this case.

• [13] The Islamic College referred to the High Court judgment in Ebner v Official Trustee in Bankruptcy[3] (Ebner) where four members of the High Court stated the following concerning the apprehension of bias principles:

".. 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...

The apprehension of bias principle... [in its] application requires two steps. First, it requires the identification of what it is said might lead a judge (or juror) to decide a case other than on its legal and factual merits. The second step is no less important. There must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits..."[4]

• [14] The Islamic College referred to the High Court judgment in Livesey v New South Wales Bar Association (Livesey) where five members of the Court stated:

"... a fair-minded observer might entertain a reasonable apprehension of bias by reason of prejudgment if a judge sits to hear a case at first instance after he has, in a previous case, expressed clear views either about a question of fact which constitutes a live and significant issue in the subsequent case or about the credit of a witness whose evidence is of significance on such a question of fact."[5]

• [15] The Islamic College argued that because I had:

• arrived at the conclusions of fact identified above;
• concluded that Ms Brownson was a reliable witness;
• concluded Ms Brownson's evidence should be believed without considering the evidence of other contradictory witnesses

a fair-minded lay observer might reasonably apprehend that I might not bring an impartial mind to the resolution of the issues I have to decide in the rehearing.

• [16] The Islamic College submitted there has not been a waiver of its right to require the application to be reheard by a member of the Commission that is not disqualified.

• [17] After identifying that the Islamic College's application relied purely on findings from my initial decision, I requested a further submission from the Islamic College to explain why the recusal application had not been made earlier, and particularly at the directions hearing on 23 January 2025. The Islamic College complied with my direction and filed a further brief submission. The submission acknowledged it would have been preferable for the application to have been made earlier but denied that the Islamic College is responsible for these increasingly protracted proceedings.

• [18] During oral submissions Mr Haddrick took me to the High Court judgment in Vakauta v Kelly[6] (Vakauta) and particularly the following statement from the plurality judgment of Brennan, Dean and Gaudron JJ:

"... both necessity and common sense require that a distinction be drawn between the case where a judge has some preconceived views about the reliability of the professional opinions of an expert medical witness and the case where a judge has preconceived views about the credit or trustworthiness of a non-expert witness "whose evidence is of significance on .... a question of fact" which "constitutes a live and significant issue" in the case..."

• [19] Mr Haddrick also took me to authorities regarding waiver to demonstrate that in other cases where waiver has been established such as Re Alley; Ex parte Australian Building Construction Employees' and Builders Labourers' Federation,[7] where the relevant recusal application was made at a much later stage in proceedings than is the case with the Islamic College's application. Mr Haddrick emphasised that the Islamic College's recusal application has been made well ahead of the listed rehearing dates.

• [20] Ms Brownson's written submissions dated 25 March 2025 argued the Islamic College has waived its right to make the recusal application as a result of its conduct in unreasonably delaying the making of the application. Ms Brownson referred to the Islamic College being aware that the application had been remitted to me since 20 December 2024 and highlighted that the recusal application was not made until 18 March 2025. Ms Brownson highlighted that the Islamic College did not raise the recusal application during the Mention/Directions hearing on 23 January 2025.

• [21] Ms Brownson submitted that I have made positive findings of credit in her favour but not negative findings concerning the Islamic School's witnesses. Ms Brownson submitted that a negative finding on credit would be more likely to raise concerns that the decision-maker will not deviate from that view. On the other hand, a positive credit finding may readily be departed from if the witness is untruthful, evasive, or combative in subsequent evidence.

• [22] Ms Brownson submitted that while justice must be seen to be done in relation to recusal applications, it is "equally important that judicial officers discharge their duty to sit and do not, by acceding too readily to suggestions 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."[8]

• [23] Mr Moorhead also made oral submissions on behalf of Ms Brownson opposing the application during the hearing on 26 March 2025.

• [24] The first step in applying the apprehension of bias principles identified in Ebner is the identification of what it is said might lead me to decide Ms Brownson's case other than on its legal and factual merits.

• [25] The Islamic College referred to a list of findings from my initial decision as being the basis for its argument that a fair-minded lay observer might reasonably apprehend that I might not bring an impartial mind to the rehearing of Ms Brownson's unfair dismissal application.

• [26] I found Ms Brownson was a truthful and credible witness in the initial decision. I accept that my finding on credit in relation to the applicant in this matter may give rise to an apprehension of bias. That means the first step in the Ebner test is satisfied.

• [27] The other findings identified by the Islamic College largely flow from my finding that Ms Brownson was a truthful and credible witness. Specifically, using the paragraph lettering from the Islamic College's submissions, I consider the other findings identified by the Islamic College have the following connection, or lack of connection, to my finding about Ms Brownson's credibility:

a) ...

b) Ms Brownson's evidence not being undermined in cross-examination was a reason that I found she was a truthful and credible witness.

c) Ms Brownson's admission that she had yelled at students was a reason I found that she was a truthful and credible witness.

d) The reference to being "astounded" about the Islamic College preferring the evidence of Student B and Student C was made with reference to my finding that Ms Brownson was a truthful and credible witness and other issues relating to the conduct of the relevant students.

e) The acceptance of Ms Brownson's evidence flows from the finding that she was a truthful and credible witness.

f) The reference to Mr Hanif providing hearsay evidence does not go to his credit. This is merely an observation in circumstances whereby Mr Hanif's evidence was limited to communicating what he had been told by students.

g) The assessment of the severity of the confidentiality breach does not concern assessing the credibility of any witnesses.

h) The finding on valid reason was a discretionary legal decision based on my evidentiary findings.

1. The finding that the dismissal was unjust and unreasonable was a discretionary legal decision based on my evidentiary findings.

j) The alternative finding on harshness was a discretionary legal decision based on my evidentiary findings.

k) The remedy ordered was a discretionary legal decision based on my evidentiary findings.

• [28] The Islamic College also referred to the Full Bench's finding that I erred by failing to consider contradictory evidence from the Islamic School's witnesses. However, that error does not constitute a negative credit finding against any of the Islamic School's witnesses. A failure to consider evidence is not the same thing as a deliberate decision to disregard evidence due to a negative credit finding.
• [29] In any event, given the first step in the Ebner test is satisfied, I will proceed to consider the logical connection between my finding that Ms Brownson was a truthful and credible witness and the feared deviation from the course of deciding the rehearing on its merits.

• [30] The Islamic College relied on the High Court judgment in Livesey to argue my finding about Ms Brownson's credit constitutes a clear view on the credit of a witness whose evidence is of significance to live and significant issues of fact. The Islamic College also referred to the High Court judgment in Vakauta which identified a distinction between credibility findings regarding an expert medical witness and findings about the credit or trustworthiness of a non-expert witness. The High Court indicated the administration of justice would be infringed if previous findings about medical witnesses who are regularly called as witnesses led to disqualification of the relevant judge. That concern does not arise in relation to a non-expert witness.

• [31] I consider the significance of the judgments in Livesey and Vakauta must be assessed with reference to the following summary of High Court judgments provided by Buchanan J in ResMed Limited v Australian Manufacturing Workers' Union (ResMed):[9]

"In the case of a judicial officer, it is clearly established that a contention to this effect, based merely on an apprehension that a party may lose a case, or an issue in a case, will not be accepted.

In Re JRL; Ex parte CJL [1986] HCA 39; (1986) 161 CLR 342 ("JRL"), Mason J, in a passage which has since been cited on very many occasions, said (at 352):

'It seems that the acceptance by this Court of the test of reasonable apprehension of bias in such cases as Watson and Livesey has led to an increase in the frequency of applications by litigants that judicial officers should disqualify themselves from sitting in particular cases on account of their participation in other proceedings involving one of the litigants or on account of conduct during the litigation. It needs to be said loudly and clearly that the ground of disqualification is 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. There may be many situations in which previous decisions of a judicial officer on issues of fact and law may generate an expectation that he is likely to decide issues in a particular case adversely to one of the parties. But this does not mean either that he will approach the issues in that case otherwise than with an impartial and unprejudiced mind in the sense in which that expression is used in the authorities or that his previous decisions provide an acceptable basis for inferring that there is a reasonable apprehension that he will approach the issues in this way. In cases of this kind, disqualification is only made out by showing that there is a reasonable apprehension of bias by reason of prejudgment and this must be "firmly established": Reg. v. Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group; Watson; Re Lusink; Ex parte Shaw. 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.'

In Re Finance Sector Union of Australia; Ex parte Illaton Pty Ltd [1992] HCA 30; (1992) 66 ALJR 583; 107 ALR 581, the passage above was cited in the unanimous judgment of Deane, Toohey and Gaudron JJ (ALJR at 584; ALR at 583) as one of the authorities to support a statement of principle applying to the statutory predecessor to the FWC, as follows:

'... Obviously, the functioning of the Commission requires that its members participate in the determination of matters in circumstances where they have a familiarity with the industry in which the particular dispute arises, with the context of the dispute and, inevitably, with facts relevant to the dispute and with one or more of the parties to the dispute. In that regard, it has long been recognised that, in most cases, that familiarity is an advantage rather than a disqualifying factor. Again, the Act itself obliges the President of the Commission to constitute industry panels to which a Presidential member and at least one Commissioner shall be assigned: s 37(1).

In these circumstances, the need for caution which this Court has consistently identified (see, eg, Re JRL; Ex parte CJL [1986] HCA 39; (1986) 161 CLR 342 at 352; Re Polites (1991) 173 CLR, at 86-87; R v Australian Stevedoring Industry Board; Ex parte Melbourne Stevedoring Co Pty Ltd [1953] HCA 22; (1953) 88 CLR 100 at 116) in relation to applications for an order preventing a member of a statutory tribunal from participating in the discharge of the functions of that tribunal by reason of apprehended bias is particularly apposite when such an application is directed against a member of the Commission. It is that care must be taken to bear in mind that the basis for disqualification by reason of apprehended bias is that there are grounds upon which a party or the public might entertain a reasonable apprehension that the particular member of the Commission will not decide the case impartially or without prejudice. The basis for disqualification is not merely that the member's past decisions, on questions of fact or law, might lead to a reasonable expectation that she or he will decide the case adversely to one of the parties. Nor is it that she or he has had previous contact or experience, as a member of the Commission, with the facts involved in the particular matter, with the context in which the particular matter arises, or with one or more of the parties involved in the particular matter.'

In Helljay Investments Pty Ltd v Deputy Commissioner of Taxation (Cth) [1999] HCA 56; (1999) 74 ALJR 68; 166 ALR 302, Hayne J, sitting as a single judge also referred to the passage from JRL and then said (at [12]):

'The principles about apprehension of bias must be understood in the context of a judicial system founded in precedent and directed to establishing, and maintaining, consistency of judicial decision so that like cases are treated alike and principles of law are applied uniformly. The bare fact that a judicial officer has earlier expressed an opinion on questions of law will therefore seldom, if ever, warrant a conclusion of appearance of bias, no matter how important that opinion may have been to the disposition of the past case or how important it may be to the outcome of the instant case. Fidelity to precedent and consistency may make it very likely that the same opinion about a question of law will be expressed in both cases. But that stops well short of saying that the judicial officer will not listen to and properly consider arguments against the earlier holding. As Lush J said in Ewert v Lonie:

"Every reasonable man knows that consistency in decision is one of the aims of judicial or quasi-judicial institutions, but if he is exercising his quality of reasonableness he does not suppose that a tribunal will refuse to entertain or will fail to give proper attention to a submission opposed to its former decision merely because it is so opposed. In this case, the reasonable onlooker might have thought that the appellants would not have much chance of succeeding, but this is not the same thing as feeling or believing that they would not get a proper hearing. It is not a characteristic of the law's reasonable man either to be irrationally suspicious of every institution or authority or to think that every cynical appraisal represents an absolute truth."

The "fair and unprejudiced mind" which must be brought to bear upon the determination of litigation is, as the Court said in R v Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group, "not 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.'"

• [32] I consider the High Court judgments identified by Buchanan J are inconsistent with Mr Haddrick's submission that there is a "low bar" in relation to apprehension of bias applications because of the use of the word "might" twice in the Ebner test.

• [33] I do not consider the Islamic College's submissions regarding the logical connection between my finding that Ms Brownson was a truthful and credible witness and the feared deviation from the course of deciding the case on its merits have sufficient regard to what has already occurred in relation to the rehearing of Ms Brownson's application. These are relevant circumstances that must be considered when assessing reasonable apprehension of bias.[10]

• [34] During the Mention/Directions proceeding on 23 January 2025, the Islamic College requested an opportunity to file additional evidence and submissions for the rehearing. I agreed to that request and issued directions allowing further evidence and submissions to be filed by both parties. The Islamic College has now filed additional evidence in opposition to Ms Brownson's application. This includes a witness statement from the student identified as Student A in the initial decision. The Islamic College has also filed medical evidence concerning the students identified as Student B and Student C in the initial decision. The Islamic College has also filed evidence which may suggest Ms Brownson was dishonest during the investigation process. It is highly likely Ms Brownson will file evidence in reply to this further evidence, which will need to be tested during the rehearing.

• [35] The Islamic College referred to the following statement from the Judicial Review of Administrative Action and Government Liability[11] on prejudgment in its written submissions:

"Prejudgment arises more often where the same judge has been involved in two or more cases involving the same issues of fact or the general credit of the same witnesses. The general rule is that the judge who has formed a view in an earlier case on the same facts, or on the same witness's credibility, is disqualified from trying the second case."

• [36] My decision to allow the parties to file new evidence for the rehearing, and the additional evidence which has been filed by the Islamic College, means that the rehearing will not involve the "same facts" as those I had to consider for the initial decision. The errors identified by the Full Bench will also need to be considered as part of the rehearing. These factors mean the case that will need to be considered during the rehearing will be significantly different to the case I considered in the initial decision.

• [37] The High Court has made it clear in the cases cited by Buchanan J in ResMed that the ground of disqualification is a reasonable apprehension that the judicial officer will not decide the case impartially or without prejudice, rather than that they will decide the case adversely to one party. The High Court has also made it clear that the basis for disqualification is not merely that the member's past decisions, on questions of fact or law, might lead to a reasonable expectation that she or he will decide the case adversely to one of the parties. The grounds relied upon by the Islamic College do not logically establish that I will not decide the case impartially or without prejudice because of my previous findings about Ms Brownson's credit. The Islamic College's case does not rise higher than a concern that I will decide the case adversely to the Islamic College on rehearing or that I will repeat my earlier finding about Ms Brownson's credit. Those are not sufficient grounds to establish a reasonable apprehension of bias.

• [38] I do not consider that the Islamic College has established the logical connection between my finding that Ms Brownson was a truthful and credible witness at first instance and the feared deviation from the course of deciding the rehearing on its merits. I do not consider a fair minded observer would consider I might not be open to an alternative outcome on the rehearing on the basis of the evidence and arguments put[12] or that I will not take account of all of the material put before me.[13] The test is not that my mind is blank, but rather that I am "so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented."[14]

• [39] It is difficult to envisage many circumstances where a Full Bench could remit an unfair dismissal application back to the first instance decision maker for rehearing if the Islamic College's position about the "low bar" for apprehended bias where credit findings have been made is correct. It would be rare for a first instance decision to not contain important findings about the credit of witnesses.

• [40] I do not accept the Islamic College has established that a fair-minded lay observer might reasonably apprehend that I might not bring an impartial mind to the resolution of the issues I have to decide in the rehearing. I do not consider the second step in the Ebner test is satisfied.

• [41] I do not need to decide the issue of waiver because I am not satisfied a reasonable apprehension of bias has been established.

• [42] I dismiss the Islamic College's recusal application.

• [43] A Mention/Directions hearing will be listed via video at 5pm AEDT time on Monday, 31 March 2025 so that adjustments to the previously issued directions can be discussed.

Mr Moorhead from the Independent Education Union representing Ms Brownson.

Mr Haddrick of counsel instructed by Ms Visedo from Citation Legal on behalf of the Islamic College.

[1] Paramjit Brownson v Australian International Islamic College Ltd [2024] FWC 1512.

[2] Australian International Islamic College Ltd T/A Australian International Islamic v Paramjit Brownson [2024] FWCFB 465.

[3] [2000] HCA 63; (2000) 205 CLR 337 at 345.

[5] [1983] HCA 17; (1983) 151 CLR 288 at 300.

[6] [1989] HCA 44; (1989) 167 CLR 568 at 571.

[7] (1985) 64 ALR 6.

[8] Re JRL; ex part CJL [1986] HCA 39; (1986) 161 CLR 342 at 352 (Mason J).

[9] [2015] FCAFC 106 at [32] to [35].

[10] Construction, Forestry, Maritime, Mining and Energy Union [2019] FWCFB 214 at [20].

[11] M Aronson, M Groves, G Weekes, Judicial Review of Administrative Action and Government Liability, Seventh Edition, Lawbook Co, 2022, 662.

[12] Laws v Australian Broadcasting Tribunal [1990] HCA 31; (1990) 170 CLR 70.

[13] Viavattene v Health Care Australia [2013] FWCFB 2532.

[14] Minister for Immigration and Multicutural Affairs v Jia [2001] HCA 17, [72].

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