Fair Work Act 2009

s.604 - Appeal of decisions

Application to deal with contraventions involving dismissal - application for recusal

[1] Mr Ross Kennedy has lodged five notices of appeal in which he seeks permission to appeal three interlocutory rulings made by Deputy President Kovacic in a single decision issued on 10 July 2019[1] in connection with Mr Kennedy's application for an unfair dismissal remedy against his former employer, Qantas Ground Services Pty Ltd (QGS). The applications for permission to appeal have been allocated to a Full Bench and have been programmed to be heard conjointly on 2 September 2019. I am the presiding member on that Full Bench, and the directions in respect of the hearing have been issued from my chambers. On 1 August 2019 Mr Kennedy filed an application for me to recuse myself from hearing and determining his applications for permission to appeal. This decision deals with that application.

[2] On 5 August 2019 I directed that Mr Kennedy file any submissions he wished to make in relation to his recusal application by 12 August 2019. On 16 August 2019 Mr Kennedy filed an outline of submissions in which he contended that "false and misleading" statements contained in a decision of a Full Bench, on which I was the presiding member, issued on 4 April 2019[2] (April Decision) gave rise to a reasonable apprehension of bias and that a fair-minded lay observer would reasonably apprehend that I would not bring an impartial or unprejudiced mind to the current applications for permission to appeal. Mr Kennedy advanced five grounds for recusal in his submission. To understand the gist of those grounds, it is necessary to set out the factual background in brief.

[3] Mr Kennedy's unfair dismissal remedy application concerns the termination of his employment with QGS on 2 November 2017. That application is currently before Deputy President Kovacic for determination. Mr Kennedy's application has been the subject of a number of interlocutory decisions. The April decision concerned an appeal made by Mr Kennedy against one of those interlocutory decisions. Permission to appeal was refused because the Full Bench did not consider that the grant of permission to appeal would be in the public interest.

[4] On 29 May 2019 Mr Kennedy sent an email to the General Manager of the Commission, Ms O'Neill, seeking that a number of corrections be made to alleged "errors" in the April Decision. The corrections sought were in the following terms:

At [3], the FWCFB states: '...On 31 May 2016 Mr Kennedy went off work because of mental health issues after complaints had been made about his performance and he had complained of bullying and harassment by supervisors'.

I began sick leave on 30 May 2016, not 31 May 2016 as claimed by the FWCFB.

At [3], the FWCFB states: '...On 31 May 2016 Mr Kennedy went off work because of mental health issues after complaints had been made about his performance'.

I did not begin sick leave due to 'complaints had been made about his performance'.

I request that the statement be wholly removed unless the Fair Work Commission can provide evidence to support the contention of the FWCFB.

At [3], the FWCFB states: '...appears to have received workers' compensation payments until approximately 15 December 2016, at which time liability was denied.

Liability for worker's compensation was denied on 21 October 2016, not 15 December 2016 as claimed by the FCWFB. Please amend.

At [13](4), the FWCFB states that: 'the Appeal, if allowed, will address the practice of an employers sending an employee to a discredited Health Practitioner for the Health Practitioner to provide the employer with a controversial, unsound and contradicting report that is subsequently relied by the employer to terminate the employee;

'Employers' should be singular in this case and should be corrected to 'employer'.

At [13] (5), the FWCFB states: '...The Appeal.. based upon a report made by a Health Practitioner back by his testimony that employee perceived only that he was being'

The statement does not make sense and requires re-wording and completion.

At [14] dot point 4, the FWCFB states: '...if permission to appeal was not granted, it would be likely having regard to paragraph [27] of the Decision that Mr Kennedy would not be permitted to adduce evidence concerning bullying at work, which was foundational to his case for unfair dismissal'.

I have never claimed that 'Bullying at work' was 'foundational' to my unfair dismissal application."

[5] On 6 June 2019 my chambers wrote to Mr Kennedy by email advising that I had determined that the corrections sought would not be made. When Mr Kennedy subsequently sought reasons for this decision, he was advised on 7 June 2019 that I did not consider that the request had any merit. Mr Kennedy later made the same application for corrections a second time by sending a Form F1 - Application document addressed to Ms O'Neill, notwithstanding that it had already been dealt with.

[6] Ground 1 for the recusal application as stated in Mr Kennedy's outline of submission simply refers to the alleged errors in the first two corrections sought in Mr Kennedy's email of 29 May 2019 set out above. Ground 2 concerns correction 3, and Ground 3 concerns correction 6. Ground 4 concerns the communication made to Mr Kennedy on 7 June 2019 that the application for "corrections" to the April decision would not be granted because it was not considered to have any merit.

[7] I do not consider that these grounds identify any proper basis for me to recuse myself from hearing the current applications for permission to appeal. The current applications for permission to appeal concern interlocutory decisions made by the Deputy President concerning the following matters:

(1) an application by Mr Kennedy for orders requiring certain persons to attend the Commission at the hearing of his unfair dismissal remedy application;

(2) an application by QGS to be legally represented in the proceedings; and

(3) objections made by QGS to certain evidentiary material filed by Mr Kennedy.

[8] There is no "logical connection" between the refusal to correct the alleged errors in the April decision and the subject matter of the current applications for permission to appeal that might cause a fair-minded lay observer to reasonably apprehend that, as part of the Full Bench, I might not bring an impartial mind to the resolution of the questions raised by Mr Kennedy's applications for permission to appeal.[3] The subject matters of the current applications have no connection to the issue of the alleged errors in the April decision, beyond the fact that they all arise in the broad sense from Mr Kennedy's unfair dismissal remedy application. The bare fact that I have previously made, or participated in making, a decision or ruling adverse to Mr Kennedy is not sufficient to give rise to an apprehension of bias. The refusal to correct the alleged errors in the April decision did not involve any expression of view about the merits of the current applications for permission to appeal, or about the merits generally of Mr Kennedy's unfair dismissal remedy application, or about Mr Kennedy personally.

[9] The final ground for recusal advanced by Mr Kennedy in his submissions simply states: "Refer complaint made by the Applicant to Justice Ross on 15 August 2019 (1.25pm) on the conduct of VP Hatcher". The complaint referred to is as follows:

I write to lodge a complaint on the recent conduct of Vice President Adam Hatcher.

I am the Applicant in unfair dismissal matter U2017/11691 filed in the Fair Work Commission on 3 November 2017. I am untrained and self-representing. The Respondent is represented by large law firm Herbert Smith Freehills.

On 10 July 2019, Deputy President Kovacic circulated his Decision encompassing three separate Applications by the Parties.

1] Secondary Application by the Respondent for legal representation by a lawyer or paid agent;

2] Application by the Respondent on objections to evidence that I had filed. This application involved determination by the FWC of 2,000 documents; and

3] Applications by the Applicant for persons to appear at the substantive hearing.

Given alleged errors of DP Kovacic in all three Applications, I have filed 3 Notices of Appeal.

Directions issues by VP Hatcher requires me to file an Outline of Submissions covering the 3 Appeals (for permission to appeal only) to be distributed to the three FWCFB members; and 1 paginated Appeal Book covering the 3 Appeals comprising approximately 2,500 documents also to be distributed to the three FWCFB members.

At the same time, I am required to prepare an Outline of Submissions for DP Kovacic and VP Hatcher to recuse. I am required to attend a Hearing for DP Kovacic to recuse.

In addition, I currently have an arbitration matter in the Industrial Court of the Magistrates Court of the Australian Capital Territory for hearing on 7, 8 and 9 September 2019. I am required to review the respondent's submissions provided to me this week. Please find Court Order attached.

In summary, the Directions of DP Hatcher are unreasonable and unfair.

I request that the FWC hold the Hearing only in respect to the Respondent's Secondary Application by the Respondent for legal representation by a lawyer or paid agent on 2 September 2019 as directed by DP Hatcher with the other 2 Applications to be held at the convenience of the FWC.

[10] It is not clear whether Mr Kennedy is contending that the mere fact that he has made a complaint about me is a basis for an apprehension of bias, or whether the matters he complains about give rise to an apprehension of bias. If it is the former, I do not consider that a fair-minded lay observer might reasonably apprehend that I would not consider Mr Kennedy's applications for permission to appeal impartially because of his complaint. I have not expressed any view about it and I have no role in responding to the complaint. If it is the latter, I do not consider that there is any logical connection between the making of procedural directions concerning the programming of the applications for permission to appeal and my participation in the consideration of the merits of those applications. I note that, after the directions were made, on 12 August 2019 I granted Mr Kennedy an extension of time from 19 August to 27 August 2019 to file his submissions and appeal book.

[11] For the above reasons the recusal application is dismissed.

[1] [2019] FWC 4819

[2] [2019] FWCFB 2151

[3] See Ebner v The Official Trustee in Bankruptcy [2000] HCA 63, 205 CLR 337 at [6]

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