s.739 - Dispute resolution

Alleged dispute about any matters arising under the enterprise agreement - application for recusal on the grounds of apprehended bias - application refused.

[1] Mr Toby Tucker has applied to the Fair Work Commission to deal with a dispute in accordance with the dispute resolution procedure of the Victorian Public Service Enterprise Agreement 2016[1] (2016 Agreement). The application was made pursuant to s.739 of the Fair Work Act 2009 (FW Act) and was made on 13 June 2017. The Respondent to the dispute is the State of Victoria (State). I have referred to Mr Tucker's employing agency as "SRO".

[2] In his notification of dispute to the Commission Mr Tucker raised two issues on which he said he was in dispute with SRO, the first being the correct classification of the position he occupied and the second going to pay progression in conjunction with misconduct processes.

[3] On 27 June 2019 I issued a decision[2] (Classification decision) in relation to the classification dispute. Mr Tucker had sought, and I granted, that the progression pay dispute be separated out and be dealt with at a later date.

[4] In the Classification decision I rejected Mr Tucker's claim for a reclassification. In that decision I made the following findings in relation to evidence and witnesses:

[129] As I said above it is not Mr Tucker's subjective opinions or beliefs that determine the work he was required to perform or the complexity of it. Rather, such an assessment must be made on an objective consideration arising from an evaluation of the evidence.

[130] Whilst Mr Tucker was sincere in the evidence he gave I found his evidence was designed to place him in a position of exaggerated importance. He had "significant" responsibility, "significant" legal knowledge was required, he provided a "high level" of "formal" supervision, he was an "advanced" expert, he drove "major" legislative change and there was a "challenging" nature to his role.

[131] Mr Tucker used such adjectives suggesting that there may have been "less challenging" roles with less responsibility or knowledge required elsewhere although provides no comparative information that would allow such an assessment to be made. Further, Mr Tucker relied heavily on his own subjective views of the importance and complexity of the work he did. It cannot be that because a party to proceedings appears to represent themselves or is represented by a friend or a legal practitioner that a matter is particularly complex or contentious yet this is how Mr Tucker described his work.

[132] That Mr Tucker exaggerated his case is also illustrated through what he said of providing advice to the Commissioner for State Revenue which I take as being designed to have me conclude that the Commissioner was in constant contact with him seeking his "expert" advice or opinion on legal strategies for debt recovery matters. That, prior to the matter being delegated, Mr Tucker was required to have the Commissioner sign off on CP Act certificates does not equate to the Commissioner regularly seeking legal (or any other) advice from Mr Tucker in the sense Mr Tucker seeks to convey nor does Mr Tucker drafting memos that he "presumed" were at the request of the Commissioner equate to the Commissioner seeking advice from him. This is not to undervalue the work of Mr Tucker but his exaggeration does not do him great service.

[133] Mr Tucker also sought to over emphasise the extent to which he operated in isolation of his managers though omission of reference to them, the instructions they gave and the discussions held on progressing matters. Problematic matters were discussed with his managers for their "decision-making capacity". Further, Mr Tucker agreed that, while he attended creditors' meetings, he would report back to his managers "and wait for further instructions." This does not describe a person who works autonomously or without supervision. I accept that they did not and could not supervise Mr Tucker's legal work but this does not mean he worked in isolation.

[134] The over-emphasis and exaggeration in Mr Tucker's evidence suggests the need to treat his evidence with some caution in this regard. This is not to suggest his evidence should be ignored but the adjectives given lesser weight.

[135] That Mr Tucker's evidence was consistent does not make it more credible than other evidence before the Commission. That does no more than suggest a long held and accepted reality of Mr Tucker.

[136] The evidence of Mr McKee, Mr Cahir and Mr George was consistent in the assessment of the work done by Mr Tucker although generally they were prone to understate the complexity, in particular of the court work undertaken by Mr Tucker. I found each of them however to be generally clear and credible with no animus towards Mr Tucker. I have, in the main, accepted their evidence except as otherwise stated.[3]

[5] On 24 January 2020 I issued directions in relation to the progression pay dispute.

[6] Mr Tucker filed his submissions on 25 March 2020. In addition to his submissions on the merits of the case Mr Tucker has sought that I recuse myself on the grounds of apprehended bias and refer the matter to another member of the Commission.[4]

[7] Mr Tucker submits that in the Classification decision I made adverse findings as to his credit such that I should not determine the matter now before me. Mr Tucker submits that in the progression pay dispute I will be required to determine his self-assessment of his performance and, having raised issues of credit in the Classification decision it is not appropriate that I hear the progression pay dispute.

[8] He relies in his submission on the following propositions:

(a) a judicial officer should not decide a case where the credibility of a witness is a critical issue where the judge has previously made adverse findings against the witness on the same issue; and

(b) a judicial officer must not decide a case on the basis of credibility findings made on a previous occasion.[5]

[9] The State submits that there are no grounds on which it could be concluded by a fair-minded observer that I would not bring an impartial mind to the matter before me.

[10] The State submits that the test to be applied is whether the case might be decided impartially and not how the case might be decided. Further, it says that it is not the subjective views of Mr Tucker that are relevant to the determination of an apprehension of bias.

[11] The test for apprehended bias is whether a "fair-minded lay observer might reasonably apprehend that a judge might not bring an impartial mind to the resolution of the question the judge is required to decide."[6]

[12] The fair-minded lay observer, in making such an assessment, is taken to have an understanding of the workings of the Commission and the legislative framework within which it operates. The High Court observed in Johnson v Johnson[7] that:

... The hypothetical reasonable observer of the judge's conduct is postulated in order to emphasise that the test is objective, is founded in the need for public confidence in the judiciary, and is not based purely upon the assessment by some judges of the capacity or performance of their colleagues. At the same time, two things need to be remembered: the observer is taken to be reasonable; and the person being observed is "a professional judge whose training, tradition and oath or affirmation require [the judge] to discard the irrelevant, the immaterial and the prejudicial".

Whilst the fictional observer, by reference to whom the test is formulated, is not to be assumed to have a detailed knowledge of the law, or of the character or ability of a particular judge, the reasonableness of any suggested apprehension of bias is to be considered in the context of ordinary judicial practice. The rules and conventions governing such practice are not frozen in time. They develop to take account of the exigencies of modern litigation. At the trial level, modern judges, responding to a need for more active case management, intervene in the conduct of cases to an extent that may surprise a person who came to court expecting a judge to remain, until the moment of pronouncement of judgment, as inscrutable as the Sphinx [...] Judges, at trial or appellate level, who, in exchanges with counsel, express tentative views which reflect a certain tendency of mind, are not on that account alone to be taken to indicate prejudgment. Judges are not expected to wait until the end of a case before they start thinking about the issues, or to sit mute while evidence is advanced and arguments are presented. On the contrary, they will often form tentative opinions on matters in issue, and counsel are usually assisted by hearing those opinions, and being given an opportunity to deal with them.[8] [Footnotes omitted]

[13] The application of the test for apprehended bias is a two-step process identified in Ebner v Official Trustee in Bankruptcy[9] as follows_._

The apprehension of bias principle admits of the possibility of human frailty. Its application is as diverse as human frailty. 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. The bare assertion that a judge (or juror) has an "interest" in litigation, or an interest in a party to it, will be of no assistance until the nature of the interest, and the asserted connection with the possibility of departure from impartial decision making, is articulated. Only then can the reasonableness of the asserted apprehension of bias be assessed.[10]

[14] As was observed by the State in its submissions on this question "The apprehension of bias must be reasonable from the objective perspective and it is not concerned with fanciful or unreasonable apprehensions of bias."[11]

[15] In Re J.R.L.; Ex parte C.J.L.[12] the High Court observed:

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. [Footnotes omitted]

[16] Mr Tucker's application that I recuse myself on the grounds of apprehended bias are based on observations I made of his credit as a witness in a separate matter before me. Mr Tucker's application for a reclassification and his application to be granted progression pay through the pay structure that applied to his employment are two separate and distinguishable matters. Neither relies on the decision or any findings in the other matter.

[17] The resolution of issues in the Classification decision relied on the evidence of the complexity of the work being performed by Mr Tucker - given by Mr Tucker and relevant managers - and in that regard the credibility of witnesses (in that Mr Tucker exaggerated matters and his managers down played matters) in their evidence was a highly relevant consideration.

[18] Regardless of the determination of the classification dispute the progression pay dispute remains to be determined. The first and foremost issue in the progression pay dispute goes to an interpretation of the application of the Agreement and whether Mr Tucker was entitled under the Agreement to progress (as opposed to whether his performance was of such a standard that he should progress). That question is not dependent on any finding in the Classification decision of credibility or otherwise.

[19] The determination of the progression pay dispute is dependent on the interpretation of the terms of the relevant Agreement that applied to Mr Tucker's employment. This has previously been acknowledged by Mr Tucker who had sought (unsuccessfully) to have the interpretation question dealt with separately. This question will be resolved not by evidence but by the application of well established and applied principles on the interpretation of Agreements. To the extent evidence is required in relation to the progression pay dispute that will be considered when given, and assessed if necessary, for the purpose of making a decision.

[20] That, in a separate proceeding in a matter that has no bearing on the progression pay dispute, I made findings as to Mr Tucker's credibility as a witness could not be seen by a fair-minded observer to indicate that I would not bring an open mind to the application of established principles in interpreting an Agreement and in the evaluation to evidence not yet given.

[21] Whilst Mr Tucker has identified what he considers might lead me to decide a case other than on its merits (that is, my findings in the Classification decision) he fails to articulate the logical connection between those findings and the matters to be determined in the progression pay dispute. Further, the reliance by Mr Tucker on the decision in Livesey v The New South Wales Bar Association[13] (Livesey) is misplaced. In this respect it is worthwhile quoting directly from that case where it was found:

It is, however, apparent that, in a case such as the present where it is not suggested that there is any overriding consideration of necessity, special circumstances or consent of the parties, 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. The consideration that the relevant question of fact may be conceded or that the relevant person may not be called as a witness if the particular judge sits would not, of course, avoid the appearance of bias. To the contrary, it would underline the need for the judge to refrain from sitting.[14]

[22] Even if witness credibility is a factor in the progression pay dispute I have not made any adverse findings against Mr Tucker's credit on the progression pay issue. My finding of credit went to a different issue - the evidence as to the complexity of work undertaken. In addition I have not made any decision on the progression pay dispute and certainly have not made any findings on the basis of findings in the Classification decision. The fair-minded observer would not, on the basis of the principles in Livesey, conclude that there was a reasonable apprehension of bias.

[23] I would further add that Mr Tucker's subjective views of how I might decide the progression pay dispute do not provide a basis for deciding how the fair-minded observer might objectively consider the matter.

[24] For these reasons I am not satisfied that Mr Tucker has demonstrated a reasonable apprehension of bias such that I should recuse myself.

[25] Mr Tucker's application in this regard is dismissed.

[2] [2019] FWC 3896.

[4] Mr Tucker proposes the presiding member in his unfair dismissal application.

[5] Livesey v New South Wales Bar Association (1983) 151 CLR 288; [1983] HCA 17; Jambajimba v Dredge (1985) 33 NTR 19.

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

[7] [2000] HCA 48; (2000) 201 CLR 488.

[8] Ibid at [12] - [13] per Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ.

[9] [2000] HCA 63; (2000) 205 CLR 337.

[10] Ibid at [8] per Gleeson CJ, McHugh, Gummow and Hayne JJ.

[11] Gascor v Ellicott [1997] VR 332.

[12] [1986] HCA 39; (1986) 161 CLR 342 cited in Re Polites and Another; Ex parte Hoyts Corporation Pty. Limited and Others (1991) 173 CLR 78.

[13] [1983] HCA 17; [1983] 151 CLR 288.

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