Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

• [1] This decision concerns a recusal application made by Oceaneering Australia Pty Ltd (Oceaneering/Respondent). For the reasons that follow, I have decided to dismiss the recusal application.

• [2] On 26 March 2024, Mr Travis Cairns (Mr Cairns) made an application to the Fair Work Commission (Commission) pursuant to s.394 of the Fair Work Act 2009 (Cth) (FW Act) for a remedy in respect of his dismissal by Oceaneering.

• [3] On 16 May 2024, the matter was allocated to me. On that date the matter was listed for a mention/directions hearing on 22 May 2024, at which directions programming the matter for hearing were issued.

• [4] On 1 July 2024, Oceaneering filed its material along with a confidentiality application surrounding the identity of three (3) of its witnesses (Confidentiality application). The Confidentiality application was initially opposed by Mr Cairns.

• [5] On 3 July 2024, Mr Cairns filed a form F52 application seeking the production of material referenced in a witness statement filed by Oceaneering (F52 application). The F52 application was initially opposed by Oceaneering.

• [6] On 4 July 2024, I issued directions for the filing of material in respect of each interlocutory application. The matter was listed for an interlocutory hearing on 15 July 2024. The Confidentiality application and the F52 application were resolved during the hearing. However, what I said during the interlocutory hearing now gives rise to the present recusal application.

• [7] Following the interlocutory hearing the parties filed consent orders granting the Confidentiality application[1]. The F52 application was also granted, and an order issued on 17 July 2024.

a) provided Mr Cairns until 19 July 2024 to file his reply material, and

b) re-listed the substantive hearing dates in the above matter to 22 and 23 July 2024.

• [9] On 17 July 2024 Oceaneering complied with the F52 order. I reviewed the documents provided. Under my instructions, on 19 July 2024, my Chambers then sent an email to the parties about the redacted documents and also about the evidence (now that the confidential witnesses had been identified to me). Part of that email also gives rise to the present recusal application.

• [10] On 21 July 2024, Oceaneering filed the current recusal application before me (the Recusal application).

• [11] On 22 July 2024, in lieu of the substantive hearing, I proceeded to hear from the parties on the Recusal application and then reserved my decision.

• [12] The Recusal application was advanced on the basis of:

a) statements made by me on 15 July 2024 during the interlocutory hearing; and

b) an email sent from my Chambers on 19 July 2024.

• [13] The referenced statements and the email relate to the valid reason for the dismissal. Therefore, a brief summary of the matter is required here. It is uncontroversial that,

• a) Mr Cairns was employed as a non-destructive testing technician by Oceaneering for over six (6) years.[2]
• b) Mr Cairns was covered by Oceaneering Australia Pty Ltd Offshore NDT & inspection Agreement 2021 which expired on 1 July 2024.[3] Mr Cairns has been a member of the AMWU since 2006 and on or around June 2023 was elected as an AMWU delegate.[4]
• c) In or around April 2023, Mr Cairns created a WhatsApp group chat titled "EA 2024".[5]
• d) On 5 October 2023, Mr Cairns sent a screenshot of a spreadsheet containing a list of Oceaneering employees to the WhatsApp group chat.[6]
• e) On 17 November 2023, Mr Cairns received a stand down notice advising him that Oceaneering has received a harassment and bullying complaint from an employee meriting an investigation.[7]
• f) Following an investigation by Oceaneering Mr Cairns received a letter on 19 February 2024 providing him with the findings:[8]
  1. On the balance of probabilities, allegation one was substantiated: "On or around 5 October 2023, in a group chat forum of approximately 29 participants, you published the personal details of employees on Shift 1 and Shift 2 including phone numbers and whether or not those individuals were members of the union."
  2. On the balance of probabilities allegation two was substantiated: "Your communication in this chat forum has had the effect of targeting and/or marginalising those on Shift 1 and Shift 2 who may not wish to join the union."
  3. On the balance of probabilities allegation three was substantiated: "The result of your communications and disclosure of personal information is that individuals who are not members of the union have been harassed and/or marginalised creating a health and safety risk."
  4. On the balance of probabilities allegation four was partially substantiated: "Your communications are alleged to have infringed an employees' freedom of association right to not become members of an industrial association (i.e union)."
• g) On 22 February 2024, Mr Cairns provided a response as requested by Oceaneering in its letter.[9]
• h) On 23 February 2024, Mr Carins was directed to attend a show cause interview on 27 February 2024.[10]
• i) On 5 March 2024, Mr Cairns attended a further meeting during which he was advised that following the investigation, he would be dismissed effective immediately.[11] The following day, Mr Cairns received a termination letter.[12]

• [14] Mr Cairns has submitted, (but it remains to be tested) that the group chat and the spreadsheet was readily accessible by all of the members of the group chat and thus the entry of information was only be way of,[13]

(b) The employee disclosing their mobile number or member status in the Chat and the Applicant filling it in for them, or

(c) Employees other than the Applicant filing it in for other employees, either on the basis of what that other employee had posted in the Chat, or from some source the Applicant was unaware of."

• [15] In support of its recusal application, Oceaneering submitted (footnotes omitted),

10 In an interlocutory hearing in this matter on 15 July 2024,3 several statements of the Commissioner appear to suggest that the Commissioner has formed a concluded view on matters central to the allegation. They include:

10.1 "The people who have nothing next to them either might not be or they haven't updated the list. I mean, I can't tell whether these people are members of the Union. I can't tell if they're not members of the union."

10.2 "How are you going to establish that these people didn't provide their consent?"

10.3 "Either they are not a member of the Union or they haven't disclosed their union membership. They might be members but haven't updated the OneDrive document."

10.4 "But it doesn't logically, they might have thought that, but it doesn't logically follow that just because there's a blank next to their name. That it's identifying them as not being a member of the Union. It just doesn't logically follow. And I'm sure Mr Saunders is going to put that to them in cross examination."

10.5 I'm struggling to understand how allegations two and three were found proved ... And someone's lost his job over it.

10.6 "Yeah. Yeah, so. So then so then how is allegation 2 and allegation 3 found proved?"

10.7 "But I'm struggling to understand our allegations two and three were ever found substantiated."

10.8 "No, it's a list of people. It's a list that shows who are members of unions. The people who have self-identified as a member of a union. That's what it is."

10.9 "What's wrong with saying, what's wrong with celebrating the fact, hey, on shift one, we've got 100% union membership. What's wrong with that?"

Apprehension of bias - concluded finding of fact

11 In Woodside Energy v AWU, the Full Bench said:

The applicable principles concerning apprehended bias are as stated in the High Court decision in Ebner v Official Trustee in Bankruptcy. In summary, a judge or tribunal member is disqualified if a fair-minded lay observer might reasonably apprehend that they might not bring an impartial mind to the resolution of the question they are required to decide.

before it set out the principles thereafter. The apparent pre-judgment (or in this case) a factual finding in relation to the central issue in the case satisfies both limbs of Ebner.

12 Read together (and some, by themselves) on their face, these statements demonstrate a concluded view of the Commission - or one where a fair minded lay-observer would consider that it is not likely the Commission was open to further persuasion. The statements were expressed without qualification or uncertainty and could not be described as tentative.

13 All of the statements shed doubt on the central contention of the respondent, a conclusion that (we submit) ought only be made following the hearing of evidence. In particular, the statement at para 10.5 appears to amount to a conclusive finding that the investigation process was flawed, and critically, that the process had caused the dismissal of the Applicant.

14 Where a member of the Commission has expressed a very strong view at an interlocutory step about a substantive matter, it is appropriate for that member to recuse him or herself so that the matter be heard by a differently constituted Commission.

15 If the Commission, as presently constituted, made findings that conform with the views expressed above (even after a full hearing of the evidence) the decision would be attended to by doubt.

Apprehension of bias - matters needing to be proved

16 Further to the statements in the interlocutory hearing, an email from the Commissioner's chambers to the parties said:

"As the Commissioner suggested on the last occasion if there is a blank space under the heading "Membership" it does not necessarily follow that the person is not a member of the union or that a reasonable person would come to that conclusion. An alternative conclusion is that the person's union status is unknown.

Equally, if there is a blank space under the hearing "Phone" (similarly) it more likely means that the person's phone number is unknown (not that they do not have a phone)."

17 Both the tone of the email (and that the Commission saw fit to address that particular matter at all) again gives the impression that the Commission had formed a concluded view about the purpose and content of the central document prior to the hearing.

18 In the alternative to the concerns at [11] - [15], the comments made in the hearing, read in line with the comments in the email, might cause a fair-minded lay observer to believe that the Commissioner had determined that he would find for the applicant in relation to that central factual matter.

19 This is especially so in circumstances where the respondent has led positive evidence supporting a reasonable likelihood that the applicant's conduct would impact on employees, and that the employees have experienced those consequences (workers with omitted names complaining about being harassed and marginalised).

Consequences if matter listed before different Member

20 The respondent acknowledges the resource burden on the Commission caused by the slight delay, but says that it is appropriate in the circumstances.

21 The interests of the applicant are in no significant way prejudiced by a brief delay. The respondent stands ready to immediately respond to the application and (if the outcome sought above is granted) is ready to proceed as the Commission pleases.

22 The applicant is on notice of the matters above.

• [16] In UWU v Hot Wok Food Makers Pty Ltd[14] the Full Bench observed that,

[11] The principles stated in the High Court decision in Ebner v Official Trustee in Bankruptcy[15] concerning apprehended bias are applicable to Hot Wok's recusal application. In short, a judge or tribunal member 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. That principle gives effect to the requirement that justice should both be done and be seen to be done, a requirement which reflects the fundamental importance of the principle that the tribunal be independent and impartial.[16] The application of the apprehension of bias principle requires two steps. First, it requires the identification of the factor which it is said might lead the judge or tribunal member to decide a case other than on its legal and factual merits. The second step is that 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] It remains necessary to determine whether the apprehension is reasonable considered in the totality of all the relevant circumstances, and this is sometimes described as a third step.[18]

• [17] I respectfully adopt those principles.

• [18] As to the first step, Oceaneering's submissions identify two events said to give rise to a reasonable apprehension of bias:

a) statements made by me on 15 July 2024 during the interlocutory hearing; and

b) an email sent from my Chambers on 19 July 2024.

• [19] Oceaneering contend that both events touch upon the questions I would have to determine in the substantive hearing. Oceaneering submitted that,

5. ... the question of whether or not the respondent had a valid reason to dismiss the applicant turns on the underlying reason for the conduct of the applicant.

6. Relevantly, the history of the applicant's communications with colleagues included circulation in a chat group by the applicant of a list of all relevant workers, a portion listed as union members (and the remainder without such a label).

7. The respondent contends that action, in view of the industrial context and the applicant's prior conduct, constituted harassment of, or caused the marginalisation of, workers listed who were not union members.

8. The applicant contends that the action in para [6] was for some other bona fide purpose.

9. A conclusion by the Commission (for instance) that:

9.1 the list circulated did not really identify non-union members;

9.2 the applicant listing (by omission) all non-union members in a group was not intentional, not itself harassment, or that harassment was not a likely or forseeable consequence of the circulation of these details;

9.3 The allegations relating to the applicant's communications cannot otherwise be substantiated;

9.4 the employer's investigation process that made the findings above at sub-paras [9.1] and [9.2] must have been inherently flawed; or

would amount to the determination of highly significant factual matters in the case.

10. In an interlocutory hearing in this matter on 15 July 2024, several statements of the Commissioner appear to suggest that the Commissioner has formed a concluded view on matters central to the allegation. They include [see above]."

• [20] In Johnson v Johnson[19]the High Court of Australia (Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ) held that the test to be applied is an objective test. Further that (citations omitted),

[13] 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. In Vakauta v Kelly Brennan, Deane and Gaudron JJ, referring both to trial and appellate proceedings, spoke of "the dialogue between Bench and Bar which is so helpful in the identification of real issues and real problems in a particular case." 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.

[14] There was argument in this Court, prompted by Anderson J's explanation of what he intended to communicate, about whether the effect of a statement that might indicate prejudgment can be removed by a later statement which withdraws or qualifies it. Clearly, in some cases it can. So much has been expressly acknowledged in the cases. No doubt some statements, or some behaviour, may produce an ineradicable apprehension of prejudgment. On other occasions, however, a preliminary impression created by what is said or done may be altered by a later statement. It depends upon the circumstances of the particular case. The hypothetical observer is no more entitled to make snap judgments than the person under observation.

• [21] Having regard to the principles enunciated by the High Court, a fair-minded lay observer would be taken to be aware of the following basic features of the Commission's powers and procedures under the FW Act and general practices:

a) the Commission must perform its functions and exercise its powers in a manner that is, among other things, quick, informal and avoids unnecessary technicalities (s.577(b)),

b) the Commission is not bound by the rules of evidence and procedure in relation to a matter before it (s.599),

c) it is common practice for a member of the Commission to express tentative views about questions of fact before them, including by explaining to parties (so that they know what matters they need to focus on) when the member does not understand something, or will need persuasion.

d) the quick resolution of a matter will necessitate the Commission member identifying the real issues and real problems in a particular case.

e) the exchange that happens between the bench and the bar, on the run, in an interlocutory hearing tends to lack the precision that might be expected in written and more well considered correspondence.

• [22] I have carefully considered the statements made by me in the interlocutory hearing. True it is that I did not sit Sphinx like. Those regularly appearing before me would rarely have observed me ever having done so. However, as opposed to the cherry-picking way in which Oceaneering has presented my comments, they should properly be considered in context. Oceaneering had made an application for confidentiality orders. During the interlocutory hearing, I was exploring the difficulties that the proposed confidentiality orders might pose to the conduct of the proceedings. My comments about what was in the table, said to be published by Mr Cairns, where aimed to demonstrate the difficulties. So much is obvious from the transcript of the interlocutory hearing read in its entirety. Without knowing who witnesses Alpha and Omega were, it was not possible to identify whether their personal information was contained in the table. I could only demonstrate the difficulties by using examples about the gaps in the table (including under the heading "Membership").

• [23] Further, my comments indicated to the Respondent my confusion about what the table meant. So much is obvious from my use of the phrase "I can't tell whether...". Read in context I do not consider that a fair-minded lay observer might apprehend that my comments (read together, or some, by themselves) might cause me to decide the questions before me (including valid reason and procedural fairness) other than impartially. The comments considered in context (read together, or some, by themselves) did not express any finding or concluded view about the valid reason for the dismissal of Mr Cairns, nor about the adequacy, or otherwise, of the Respondent's investigation process. There is no evidence of me having a closed mind. The comments did no more than give notice (and fairly so) to the Respondent that I needed to be convinced about certain matters; that I had concerns about the evidence that needed to be addressed. Having advised Oceaneering of my concerns, it was on notice about the matters it should focus on during the substantive hearing. A fair-minded lay observer would consider that this constitutes an ordinary and procedurally fair exercise of the Commission's power.

• [24] It needs also to be noted that in the email on 19 July 2024 the comments were clearly prefaced with "Although the Commissioner remains open to persuasion, it is not clear to him...". There could be no clearer statement that no prejudgment has been made. A fair-minded lay observer would clearly understand the same. Further, to the extent that any of my comments during the interlocutory hearing could be said to cause some confusion about whether there had been any prejudgment, the clear statement in the email only four days later, had the effect of curing any prior statement that might have indicated prejudgment. It squarely falls within the characterisation given to later statements by the High Court of Australia in Johnson v Johnson.

• [25] I accept that it is important that justice is seen to be done. However, as the High Court of Australia held in RE JRL; Ex parte CJL[20] "it is equally important that judicial officers discharge their duty to sit and do not ... [accede] too readily to suggestions of appearance of bias...".[21] In this matter the second step in Ebner is not established. There has not been an articulation of the logical connection between my conduct which has been complained about and the apprehended deviation from the course of deciding the substantive hearing on its merits.

• [26] For these reasons, I am not satisfied that, in the circumstances, I should recuse myself from further hearing the substantive unfair dismissal application made by Mr Cairns. The application for me to recuse myself from further hearing the matter is dismissed.

Mr L Saunders of counsel with permission on behalf of Mr Cairns

Mr C Pym of counsel with permission on behalf of Oceaneering

[1] PR777040.

[2] Digital Tribunal Book (DTB), Exhibit 3.1, pp 48-49; see also DTB, Exhibit 4, p 182.

[14] [2022] FWCFB 158.

[15] [2000] HCA 63, 205 CLR 337.

[16] Ibid at [6] per Gleeson CJ, McHugh, Gummow and Hayne JJ.

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

[18] CNY17 v Minister for Immigration and Border Protection [2019] HCA 50, 268 CLR 76, 94 ALJR 140, 375 ALR 47 at [21] per Kiefel CJ and Gageler J.

[19] [2000] HCA 48.

[20] [1986] HCA 39; (1986) 161 CLR 342.

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