Section 394 - Application for unfair dismissal remedy

Application for an unfair dismissal remedy - recusal

• [1] This decision publishes reasons why I have recused myself from hearing and determining two concurrently listed applications made under s 394 of the Fair Work Act 2009 (FW Act) following a disclosure to the parties.

• [2] The unfair dismissal applications are by Mr Jovan Jovcic and Mr Filip Markovic. The respondent in each application is Coopers Brewery Limited.

• [3] The applications were allocated to me when they did not resolve before a staff conciliator.

• [4] On 21 March 2022 I made the following disclosure:

Two unfair dismissal matters are before Deputy President Anderson, Mr Filip Markovic v Coopers Brewery Limited U2022/1664 and Mr Jovan Jovcic v Coopers Brewery Limited U2022/1663.

The Deputy President issued directions on 18 March 2022.

The applications are listed for concurrent hearing on 27, 28, 29 and 30 June 2022.

The Deputy President makes the following disclosure to the parties.

The Deputy President was appointed to the Commission in March 2017.

Between 2008 and 2015 the Deputy President, in his then capacity as Chief Executive of the Australian Chamber of Commerce and Industry, was a director of a company, Australian Made Campaign Limited ABN 20 086 641 527. That company is a not-for-profit organisation which administers the Australian Made Australian Grown Campaign.

A director of the Australian Made Campaign Limited in this period was Mr Glenn Cooper AM of Coopers Brewery Limited, the respondent in these proceedings. Mr Cooper was chairman of Australian Made Campaign Limited at the time the Deputy President left its board in early 2015.

In 2014, Coopers Brewery Limited donated beer (in the approximate value of $200) to a fundraising auction conducted by the Deputy President and his son in support of a charity bike ride they undertook in Thailand in January 2015 (the charity being 'Hands Across the Water', in aid of 2004 tsunami orphans).

Since leaving the Australian Made Campaign Limited Board, the Deputy President, in his capacity as a former board member, has met Mr Cooper at two functions - one a farewell to an outgoing CEO of the Australian Made Australian Grown Campaign (in abut 2018) and one a joint farewell to its outgoing Chairman (Mr Cooper) and its outgoing Treasurer (in 2021).

The Deputy President neither has nor has had a personal association with Mr Cooper or persons associated with the respondent other than in the aforementioned professional capacity.

The Deputy President neither has nor has had an interest pecuniary or otherwise in the business of the respondent.

In light of the directions issued on 18 March 2022 and listing of these matters, should the aforementioned raise any issues for the parties in U2022/1664 or U2022/1663 the Deputy President directs that any such advice be provided by close of business 28 March 2022."

• [5] On 23 March 2002 the applicants' legal representative advised:

"Thank you for your email of 21 March 2022 in respect of these two matters.

My clients' instructions in relation to the matters raised in your email have been taken.

My clients thank the Deputy President for his courtesy in providing this information to us.

In all of the circumstances, I contend that the matters raised in the email give rise to a reasonable apprehension on the part of a well-informed bystander that the Deputy President might not bring an impartial mind to bear upon his adjudication of this dispute.

I am not suggesting that the matters raised in your email communication give rise to any issue of actual bias. My concern is in relation to a reasonable apprehension of bias. That is certainly the concern of my clients.

We would ask that the existing hearing dates be maintained but that the matter be listed before another member of the Commission."

• [6] That same day the respondent's legal representative advised:

"While it is a matter for the Commission to determine, the Respondents do not consider that any issues arise from the Deputy President's disclosure of 21 March 2022. The matters raised occurred more than 7 years ago and the events are unrelated to the business of the Respondent, or any of the matters in dispute in these proceedings (namely the arrangements between the Respondent and its employees and safety management at the workplace). The Respondents would be content to proceed to trial on the dates already set before the current member."

• [7] The legal principles concerning recusal are well established.

• [8] A Member has an active obligation to make relevant disclosures.[1] A Member must recuse themselves if circumstances objectively support a finding of actual or apprehended bias.[2] However, a Member seized of a matter cannot cease dealing with the matter or re-allocate the matter of their own motion absent such finding or for other reasonable cause.[3]

• [9] The test for apprehended bias is whether a hypothetical fair-minded lay observer appraised of the relevant facts might reasonably apprehend that the Member might not bring an impartial mind to the determination of proceedings.

• [10] I am not satisfied that the test of apprehended bias is made out simply by virtue of the fact that a Member, prior to their appointment, had sat on the board of a not-for-profit company and on that board also sat a person associated with a different company which, years later, is a respondent to proceedings before the Member. Absent more, there is no relevant "interest" or association that enlivens an objective finding of apprehended bias.

• [11] Thus, if this matter were simply to concern the fact that seven years ago (and two years prior to appointment) I had sat on the board of the Australian Made Australian Grown Campaign in a past professional capacity and a senior officer of the respondent company had also sat on that same board at that time, I would not consider the test for recusal to be made out. That scenario does not establish a relevant interest in the respondent company nor any relationship with the company officer other than a past professional and arms-length association arising from independently made board appointments.

• [12] However, I am satisfied that the relevant test is, on balance, made out by virtue of the fact that I accepted in my personal capacity a past gift from the respondent company. That the gift was a donation made more than seven years ago, was put to the benefit of a registered charity and was an in-kind donation of small dollar value is relevant but does not change its essential character. Recognising that a decision to recuse should not be made lightly and that disclosure of the gift on my own motion tells against recusal, I nonetheless consider the circumstances warrant that course.

• [13] For this reason, and having made the necessary disclosure, I consider it appropriate to recuse myself from further dealing with these applications.

• [14] The applications will be referred for re-allocation.

• [15] It will be for another Member of the Commission to determine whether further or amended directions should issue.

[1] Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 33 at 69; Re JRL; Ex parte CJL [1986] HCA 39, 161 CLR 34

[2] Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 33

[3] Amec Foster Wheeler Australia Pty Ltd v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia [2021] FWCFB 3191 at [30]

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