Fair Work Act 2009

s.604 - Appeal of decisions

[1] Ms Qing Dai has lodged appeals against two decisions issued by single members of the Commission. The first appeal[1] is against a decision made by Commissioner Bissett on 2 July 2019[2] concerning an application for anti-bullying orders made by Ms Dai pursuant to s 789FC of the Fair Work Act 2009 (FW Act) in respect of her former employment as a part-time laboratory assistant with St Michael's Grammar School (School). In this decision, the Commissioner declined to grant an application made by the School that the application be dismissed on the basis that it had no reasonable prospects of success and, instead, determined that Ms Dai's anti-bullying application should be stood over pending the determination of an application for an unfair dismissal remedy which Ms Dai had lodged in respect of her dismissal by the School on 7 June 2019 pursuant to s 394(1) of the FW Act. The second appeal[3] is against a decision made by Commissioner Wilson on 1 April 2020[4] concerning Ms Dai's application for an unfair dismissal remedy. In the second decision, the Commissioner found that Ms Dai's dismissal was not unfair and dismissed her application.

[2] Both appeals have been allocated to a Full Bench on which I am the presiding member. Both appeals were listed for a hearing to occur on 2 November 2020.

[3] On 20 October 2020, Ms Dai sent an email to my chambers seeking that I recuse myself from the hearing of her appeals. On 23 October 2020, Ms Dai filed submissions in support of this recusal application. Ms Dai filed additional material in support of the application on 26 October 2020.

[4] On 2 November 2020, prior to the commencement of the hearing, I caused my chambers to send an email to the parties advising that I declined to recuse myself from the hearing of the appeals and that I would give my reasons for this decision in due course. In accordance with this advice, my reasons are set out below.

[5] Ms Dai's email to the Commission of 20 October 2020, which contained her recusal application, stated:

"Considering President Ross's instruction attached, I am now officially applying to Vice President Hatcher to recuse himself from further dealing with the matter while I also want through him to pass on my further concerns of the other two members of the previous Full Panel - Deputy President Goodley and Commissioner McKinnon who together refused to grant my permission to appeal Commissioner Ryan's decision ([2017] FWC6315, shown in [2018] FWCFB1362) since I reasonably believe that the Vice President Hatcher should be replaced by any alternative member other than the members who had been involved in the decisions of my too similar twice unfair dismissal remedy applications including my failed initial permission of appeal application, which the key decision had been presided by him had been negatively used by both the employer and commissioner Wilson for enhancing their reasons to trust the employer's dismissal fair, which has negatively influenced the employer's views, indicated in [name redacted]'s witness statement that the "egregious nature of my conduct and behaves was misconduct warranting dismissal" which had misled Commissioner Wilson to lose his basic "Natural Justice" in his decisions of [2020] FWC758 based his prejudgement that the employer witness are creditable while my witnesses without a credible base, which has been why all my own evidences submitted from exhibits A to A6 as well as all the transcripts from my cross-examination started from 4pm on 12/11/19 including my paid barrier's two days last hearing plus his written' closing submission had been almost fully excluded. Furthermore, I had not only complained the full panel of my previous rejected permission of appeal to President Ross on 5/4/18 for the decision made by Vice President Hatcher, Deputy President Goodley and Commissioner McKinnon) based on the hearing dated 5/5/19 but also had spoken to the Vice President's Associate on 20/5/20 about my concerns of the Vice President hearing my appeal are certainly affected by bias since both Commissioner Wilson and Commissioner McKinnon had displayed their biases in the favour of the employer by deteriorating my psychological conditions further down despite I had submitted much more substantial evidences to support my 2nd unfair dismissal remedy application than what I provided to support my initial unfair dismissal remedy application due to my improved skills to collect the similar workplace bullying evidence."

[6] Some of the matters raised in the above correspondence require explanation. Ms Dai was, prior to her employment with the School, employed by Camberwell Grammar School (CGS). She was dismissed from that employment, and lodged an application for an unfair dismissal remedy in the Commission. In a decision issued ex tempore on 25 October 2017 and published on 31 October 2017,[5] (then) Commissioner Ryan, who has since retired, determined that Ms Dai's dismissal was unfair. In a further decision issued on 4 December 2017,[6] Commissioner Ryan declined to grant Ms Dai the remedy of reinstatement, as she had sought, and instead awarded her monetary compensation. For relevant purposes, the gist of the decision is that the Commissioner did not consider that reinstatement would be an appropriate remedy because it was not possible to restore a productive and viable working relationship. This conclusion arose from Ms Dai's unwillingness to interact with other staff in what she regarded as a hostile working environment and a loss of trust and confidence flowing from improbable allegations made by Ms Dai against various staff members at CGS.[7]

[7] Ms Dai then appealed Commissioner Ryan's decision of 4 December 2017. In a decision issued on 9 March 2018[8] (CGS appeal decision) a Full Bench of the Commission comprised of myself, (then) Deputy President Gooley, who has since retired, and Commissioner McKinnon refused Ms Dai permission to appeal on the basis that she had identified no arguable contention of error in the decision under appeal. In doing so, the Full Bench referred to the substantive and procedural grounds of appeal raised by Ms Dai, to the extent that they could be identified in the notice of appeal, and Ms Dai's submissions, and briefly explained why they were considered to be lacking in merit.

[8] After Ms Dai lodged her current appeals on 22 April 2020, she telephoned my chambers on 20 May 2020 and, amongst a number of other things, expressed the view that I should not sit on her appeals. In response, she was requested to communicate any concerns she had in writing. Ms Dai sent a long email to my chambers on 21 May 2020 in which, amongst a large and diverse range of matters, she expressed a preference for me not to sit on the Full Bench in her appeals. It appears that at or about this time Ms Dai sent an email to similar effect to the chambers of Justice Ross, President of the Commission. On 22 May 2020, Justice Ross sent Ms Dai a letter which, relevantly, stated:

"... I understand that you do not want any Fair Work Commission (Commission) Member who has previously made 'negative directions or decisions' on the Full Bench dealing with your appeals (C2020/2627 and C2020/2651), and you have asked me to remove Vice President Hatcher from the Full Bench. I am informed that the Vice President was on the Commission Full Bench that dismissed your 2018 application for permission to appeal.

It would not be appropriate for me to remove a matter from a Member and allocate it to another Member based on a submission by one party. If you think that the Vice President is affected by bias, you can apply to him to recuse himself from further dealing with the matter. I am informed that you spoke to the Vice President's Associate on 20 May 2020 about your concerns about the Vice President hearing your appeal. The Associate told you that you should put your request in writing for the Vice President to consider. That is the appropriate course for you to take."

[9] I understand the above passage from Ross J's letter of 22 May 2020 to constitute "President Ross's instruction" referred to Ms Dai in her email of 20 October 2020.

[10] Ms Dai's submissions in support of her recusal application filed on 23 October 2020 (pursuant to a direction made by me the previous day) stated:

"Enclosed please find the additional documents to prove the two employers' did follow the exactly same pattern to allow the white co-worker and the head of science conspired together to destroy both of my mental health and original highly reputable and academic career, especially to allow the former employer to use the dishonest and egregious conduct to put me in the due course of dismissal since the day I was attend outside conference the head of science called my previous head of science at Brighton Grammar School on 28/11/14 knew I left there because I felt bullying from my white co-worker who was also my direct line manager without any tiny working performance issues or any other issue with any other colleague o[r] students, then they got the support from the deputy head to immediately set up "Lab Coat issue", the "Chemical Waste Issue" which significant errors shouldn't be made by any person if he or she had basic chemistry knowledge. However, due to my union's legal help, none of the issues had been possible to get rid of me so the head of science finally freed off significant Y10 chem workload from the co-worker to add on me to cause me got physical work injury, when the school used the new business manager and new HR dept to work together to set me up by cheating my treating doctors, Worksafe RTW inspector, Worksafe agent (CGU), my union as well as the "000" to suddenly stand me down on 20/2/17 as St Michaels' did on 9/5/19 with the fabricated excuse, then altered my original recovered 4 days per week work capacity into "No Capacity" so that the workSafe RTW inspector failed to issue the RTW improvement Notice during her visit on 4/4/17, which made me lost best change to RTW since they were no any excuse from either my conduct or performance at CGS made me deserved to have stood down on 20/2/17 except the made up files notes by the business manage, HR manager and the school nurse as the appeal book [AB 3-7], which St Micheals used the similar way. I haven't done anything seriously wrong to deserve to receive any performance letter but the whole employer's witness's lies under the oath support each other due to they all white people so the commissioners treated them as creditable person and on the contrast, they treated me as "Chinese Virus" in the workplace. Failing to find the reasons to allow my previous person to be reinstated as approved WorkCover injured worker, who had been illegally stood down at home over 3 months then directly dismissal in the significant nonsense excuse of failing or refused to attend the internal workplace bullying investigation but which my adult child, who was then 4th year Monash medical students, wrote the bullying complaint for me to lodge on 10/12/14 which had never been investigated, which directly led my first and last warning letter next day and it was the head master's decision, "no one can change the past but we can change future" so the external workplace mediator hired in to achieve the "Head of Agreement" While all including in the attachment"

ON the other hand, despite my initial dismissal was confirmed unjust and the employer's conduct to dismissal me were commented by commissioner Ryan as "egregious" conduct but due to failing to be reinstated, both commissioner and employer treated my innocent conduct and performance at CGS were "egregious nature of poor conduct and performance" so I have to add more evidence to prove how the former employer's dishonesty on altering my issued certificate after the original with my signature had been received and the business manager had promised to follow the certificate but behind everyone including CGU, they used the one to misled the worksafe RTW inspector which I had been made aware until 6 months later when worksafe inspector to come to my home for 3 full days just found the reason why the inspector not to issue the worksafe RTW improvement notice, just as the similar situation that the worksafe's Dangerous Good inspector at SMGS also hadn't issued the improvement notice on his initial visit on 8/4/19 and or 29/4/19, which were all set up...

Please at leas[t] to read the files' each name and understand I need rebuild my trust in FWC in the completely new panel. I am sorry I will be impossible to pick up my spirits to cope the coming formal hearing if still vice president controls the full panel on my appeal.

Please be aware all the medicine professionals including WorkSAfe IME examiners who know my case including my daughter and my son-in-law believe I have been suffering worse and worse bullying. If I got 1 bullying at BGS, CGS was 100 and SMGS 10000. Therefore, based on Vice President's views exposed in [2018] FWCFB 1362, even if my unfair dismissal will be proved unfair, finally, he will still use the same view to block me to be reinstated, which will forever kill my heart as human beings and disabled me to be back to any employment. I am too sick to imagine to face him or listen to his voice in the hearing due to aggravated psychological conditions, just as I had become too sick to continue the ongoing hearing when i read commissioner wilson's special direction dated 14/11/19, when i was immediately delivered to St Vincent and over one week at hos[p]ital so i was forced to hire Mr Shaw from 15/11/19 for him to handle everything to the end but none of Mr Shaw's views was accepted in the decisions."

[11] A range of documents were attached to this submission. Their relationship to the propositions contained in the submission is obscure. They broadly relate to the merits of Ms Dai's previous case against CGS and her current proceedings against the School. None of them concerns my role in the previous appeal proceedings against CGS or the current appeals.

[12] As earlier stated, on 26 October 2020, Ms Dai sent in a further submission by email, and attached various documents. The submission stated:

"Please at leas[t] compare the file of AB p323-327, 330-336, 561 with AB p277-278, 280, 569-570, 582 to see as well as dai q. pdf file to see whether my allegation without a credible base while having a look on the attached [AB p392-423 References used in [2020] FWC758 and Some Important Notes] to see how Commissioner Wilson to ignore my submitted evidence as well as all the transcripts from PN4481 which included all my key cross-examination with [names redacted].

I have completely lost my trust and confident on Vice President Hatcher due to my last similar permission was rejected by him and now he is starting to force me to attend the hearing other than face to face by trying to close the case. I am declaring here, it he is still handling my ongoing case, I will be becoming too distress to coop with any ongoing hearing. If my case is rejected again, I will certainly continue to fight for the justice in the higher court."

[13] The documents attached to this submission did not pertain to my role in any of the proceedings brought by Ms Dai.

[14] It is somewhat difficult to identify the basis of Ms Dai's recusal application. There seems to be two strands in her submissions:

(1) There is a similarity between the subject matter of her previous proceedings against CGS and the subject matter of her proceedings against the School, such as to give rise to a concern on her part that my role in the CGS appeal decision would lead me to find against her in her proceedings against the School.

(2) The fact that I had been part of a Full Bench in the CGS appeal decision which found against Ms Dai meant that she would suffer mental distress if she had to appear before me again, having regard to her mental health issues.

[15] I do not understand the submissions to involve any contention of actual bias on my part. I have approached them on the basis that they contend that there is a reasonable apprehension of bias on my part. The relevant principles applicable to such a contention, derived from the High Court decision in Ebner v The Official Trustee in Bankruptcy,[9] are as follows:

• a decision-maker is disqualified if a fair-minded lay observer might reasonably apprehend that the decision-maker might not bring an impartial mind to the resolution of the question that is required to be decided;

• deciding whether a decision-maker might not bring an impartial mind to the resolution of a question that has not been determined requires no prediction about how the decision-maker will in fact approach the matter, since the question is one of possibility (real and not remote), not probability;

• the first step in the application of the apprehended bias principle requires the identification of what it is said might lead a decision-maker to decide a case other than on its legal and factual merits; and

• the second step is that 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.

[16] Ms Dai relies upon my participation in the CGS appeal decision in relation to the first step, but I do not consider that there is any logical connection between that matter and Ms Dai's apparent apprehension that I might not decide her appeals impartially and fairly. The CGS appeal decision involved an earlier employment and dismissal, and specifically concerned the question of whether there was appealable error in a decision to decline to reinstatement, her earlier dismissal having been found to be unfair. The current two appeals have an entirely separate subject matter, in that they involve a subsequent and different employment and, in the case of the second appeal, involves a consideration as to whether there was appealable error in the decision at first instance that Ms Dai's dismissal from that later employment was not unfair. The CGS appeal decision did not involve any conclusions about Ms Dai's character or credibility with might conceivably affect the determination of the current appeals. No issue of whether Ms Dai ought to be reinstated to employment with the School arises in the appeals. Accordingly, I do not consider that a fair-minded lay observer would apprehend that there was a real possibility that I might not bring an impartial mind to the consideration of the current appeals because of my participation in the CGS appeal decision.

[17] That the prospect of appearing before me might cause Ms Dai mental distress and a loss of trust and confidence in the Commission to decide her case fairly because I was part of the Full Bench which found against her in the CGS appeal decision is not a matter which attracts the operation of the apprehended bias principle. The principle is concerned with the perspective of the fair-minded lay observer, not with the subjective perspective of a particular litigant afflicted with mental illness. The fact that Ms Dai might be sickened at the prospect of seeing my face and hearing my voice again does not form a rational basis for the conclusion that I might not bring impartiality, as part of the Full Bench, to the determination of her appeals.

[18] The above constitutes my reasons for the rejection of Ms Dai's recusal application.

[2] [2019] FWC 4530

[4] [2020] FWC 758

[5] [2017] FWC 5561

[6] [2017] FWC 6315

[8] [2018] FWCFB 1362

[9] [2000] HCA 63, 205 CLR 337 at [6]- [8]

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