//
[2019] FWC 3669
General information, not legal advice.
Fair Work Commission
2019-05-31
Ross J
Original judgment source is linked above.
The application of these principles does not change merely because a judge expressly acknowledges at the hearing of the first proceeding that different evidence may be led in the later proceeding, casting new light on the facts he or her had found in the previous proceeding. This is assumed to occur in any event. Such an acknowledgment does not necessarily remove the impression created by reading the earlier judgment that the views there stated influence the determination of the same issue in a later judgment: see at [145] per Heydon, Kiefel and Bell JJ. [Emphasis in reported judgement]
These principles must be carefully applied. It has been said that: "... disqualification flows from a reasonable apprehension that the judge might not decide the case impartially, rather than that he will decide the case adversely to a party": Cabcharge at [32]; Re JRL; Ex parte CJL [1986] HCA 39; (1986) 161 CLR 342 at 352 (Mason J).
Needless to say, disqualification of a judge by reason of prejudgment must be "firmly established": Cabcharge at [25]; Re JRL at 352. Judges should not accede too readily to recusal by reason of apprehended bias.
To apply these principles in any given case is a matter of judgment and evaluation depending on the exact circumstances. Undoubtedly, the question of an apprehension of bias requires one to focus on the issues that the judge is called upon to decide - see eg British American Tobacco Australia Ltd v Gordon (2007) NSWSC 109 at [97] per Brereton J. No strict approach should be taken in identifying the legal and factual issues. The issues before a judge sought to be disqualified may well be different in some respects to those issues determined in the earlier proceeding. At the core of the inquiry is an examination of the legal and factual issues on foot and the extent to which previous findings may, in the eyes of the fair-minded lay observer, impact on the judge's ability to decide the matter other than on its merits.
Because the test of apprehended bias involves "a fair-minded lay observer" who is observing a judge, the assumed characteristics of each need to be considered.
A judge is trained and is required "to discard the irrelevant, the immaterial and the prejudicial": see Vakauta v Kelly (1988) 13 NSWLR 502 at 527 (McHugh JA), adopted in Vakauta v Kelly [1989] HCA 44; (1989) 167 CLR 568 at 584-585 (Toohey J); Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488 at [12] (Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ); and Laurie at [80] (Gummow J); and at [140] (Heydon, Kiefel and Bell JJ).
As to the "reasonable observer", in Laurie at [145], Heydon, Kiefel and Bell JJ affirmed that a reasonable observer would note the possibility of the evidentiary position changing between the previous proceeding and the subsequent proceeding.
In R v Burrell (2007) 175 A Crim R 21; [2007] NSWCCA 79 at [11], McClellan CJ at CL (with whom the other members of the New South Wales Court of Criminal Appeal agreed) stated that:
"The ordinary fair minded person understands that in the exercise of the judicial function it will be necessary, from time to time, for a judge to reconsider matters which have previously been considered or which may have been pronounced upon by that particular judge."
In Sengupta v Holmes [2002] EWCA Civ 1104; [2002] TLR 351, at [35]-[37], Laws LJ (Jonathan Parker LJ agreeing) stated that the fair-minded observer would recognise that a professional judge would be capable of departing from an earlier expressed opinion.
However, as I have indicated, applying these principles will be a matter of judgment and evaluation in the circumstances. The application of these principles to particular facts in earlier authorities, concerning as they do, the particular circumstances that may or may not have lead a judge to be disqualified, are not to be elevated to the "principles" to be applied. Nor is the application of the principles in any given case to be used as a gloss upon those principles. As the authorities demonstrate, including Laurie, the principles are relatively well established, but in the application of these principles reasonable minds may differ as to the result."[11]
[9] Having considered the principles associated to determination of applications of this sort, I turn now to a consideration of each of the grounds advanced by Mr Chow.
[10] The first ground advanced goes to a lack of fairness and justice on my part toward Rejoice and Mr Chow. This is particularised as a concern that after Rejoice objected to the continuation of Ms Leung's application on the grounds that it was not her employer, it was requested to make submissions both on behalf of Rejoice and Creative Everyday as to who Ms Leung's employer was at the time of her dismissal. That led to several events of concern to Mr Chow on 5 April 2019:
First, my Chambers communicated with the parties by email in the morning as follows, with a Full Bench decision attached for their review. It should be noted that the underlined text is the text Mr Chow refers to in his elaboration about his first ground of apprehended bias;
Please be advised that upon review of the file the Commissioner draws to the parties attention the attached Full Bench decision Mr David Djula v Centurion Transport Co. Pty Ltd [2015] FWCFB 2371 in which the Commission decided an incorrectly named employer in an unfair dismissal application could be in particular circumstances substituted for the actual employer.
Parties are asked to please review this decision as the Commissioner will invite submissions from the parties on the subject of this decision and its application to the current application in this afternoons hearing.
"THE COMMISSIONER: All right. Maybe if this can be interpreted, as well. Ms Leung, that may be getting a little bit ahead of things. What I wanted to check is that you understood what these proceedings are about. Rejoice say back in December they were not your employer. Now, I just wanted to make sure you understand that what I have to do, subject to what I'm about to say, is to determine whether that objection is correct.
MS Y LEUNG: (Direct) Yes, yes. Sorry, I have no experience with that.
THE COMMISSIONER: All right. So you understand that?
THE COMMISSIONER: Now, again thank you, both of you, for having provided the material that you did in response to the order issued by the Commission. That information was filed by you both on Thursday. Now, Ms Leung, let me put it this way: the documents you have provided, and also that Mr Chow has provided, appears to show to me that the employer in December was not Rejoice but rather Sameway Magazine, which is a trading name of Creative Every Day Pty Ltd. Okay? Now, if that's the case - if those documents are accurate - then it seems to me that the objection made by the employer may well be correct. If that can be translated, please.
The reason I'm putting that to you is that if that is the case - if I'm persuaded that in fact Creative Every Day was the employer and not Rejoice - then the objection is made out and your application would not go further. However, what I need to identify to you both is that there may be a different question which should be answered by the Commission, but it's up to you to make the application, Ms Leung, and then me to be persuaded on the evidence. That question is whether there are reasons to substitute the name of Same Way for what is shown on the document as Rejoice. If that can be translated, please.
Now, it's up to you if you want to make that application and you would need to say that to me in a few minutes. If you did make that application, then I would proceed to determine it after I've heard from you both. I need to identify to you it's by no means absolutely a certainty that that would be given. I would need to understand more about the circumstances. I would need to hear what Mr Chow might have to say. If he's not able to represent Same Way, then I would need to give Same Way an opportunity to give me their views, as well.
If you made that application and I found in your favour, then the substitution would occur. Alternatively, if I found against you, then you would need to make another application to the Fair Work Commission under the name of Same Way and you would need to then persuade the Commission that there should be an extension of time; again which is by no means automatic. All right.
The reason I'm putting this to you is I'm not seeing within your documents evidence that would suggest that when you came to finish with Rejoice in December, that you were in fact - sorry, I'll start that again. I'm not seeing your documents evidence that when you finished work in December that you finished work as an employee of Rejoice."[12]
[11] Mr Chow's written submissions on the subject include assertions that I was providing legal advice to Ms Leung to change the Respondent's name and, with reference to Rejoice being the Respondent, "that all evidence submitted by REJOICE, Creative Every Day and Ms Leung, all pointed that the objection of the Respondent should be granted and Commissioner had explicitly said so". Further, Mr Chow submitted that:
"It is beyond the power for Commissioner Wilson to explore, investigate, collect information from hearing, and conclude that such a change of name is possible, and to propose for such a change without an application or any intention from Ms Leung to do so. Such a proposal from Commissioner is unfair for REJOICE as respondent as REJOICE was exploited to provide information unrelated to its objection for the case.
It is unfair to Creative Every Day which was ordered to provide evidence to the objection of the Respondent (REJOICE) only, invited to provide evidence during hearing, but forced to provide information (through statement made by me under oath), to help Commissioner to identify itself as a possible Respondent of the case.
It is also unfair to Mr Raymond Chow as he was supposed to be representing REJOICE making evidence under oath but to be requested to provide information which may be used to against his interest in Creative Every Day.
Section 577(a) requires Commissioner Wilson to be fair and just. Obviously knowing that the objection of the Respondent was valid at the beginning of the hearing and changed the purpose of the hearing by Commissioner Wilson to help the Applicant to find another respondent is an abuse of the Fair Work Act 2009."[13]
[12] The second ground advanced by Mr Chow is that I have misapplied s.586(a) of the Fair Work Act 2009 (the Act) and have done so even though "Ms Leung had not applied for such correction and amendment"[14] and "FWC does not have the authority to help the applicant of an application to find out who should be named as the Respondent".[15] This is particularised in Mr Chow's submissions in the following way:
"FWC does not have the duty or authority to help an Applicant to identify the Respondent; otherwise, FWC is providing legal advice to the Applicant, which will be unfair to the Respondent. In this case, Commissioner Wilson had helped Ms Leung to investigate the case and provided advice and assistance to Ms Leung to change the name of the Respondent. These actions have made a fair decision on any future applications to have Creative Every Day as Respondent impossible. FWC cannot be both an investigator and a judge.
Ms Leung insisted that Raymond Chow was her employer and REJOICE was the same as Creative Every Day were both equal to Raymond Chow . This was not confusion but her belief that the companies that her jobs related to would be the employer. That was why she had insisted that both REJOICE and Sameway Magazine which Raymond was related to, were the same (which is obviously not true) as her employer. This was a belief that as Respondent, I had tried to correct her through submitting all relevant documents.
I believe that it is not the duty of Commissioner Wilson, nor he had the authority to correct such a belief."[16]
[13] The third ground advanced by Mr Chow relates to the order issued by me under s.590(2) of the Act whereby Ms Leung, Creative Everyday and Rejoice were ordered to produce documents pertaining to Ms Leung's payslips as well as the documents pertaining to the "identity of the Committee of Management' of both Rejoice and Creative Everyday. Mr Chow's relevant submissions on this ground include the following:
"Commissioner Wilson should not have the expectation of Creative Every Day to challenge the statements made by Ms Leung during and in submissions made after the hearing. [17]Creative Every Day was not the Respondent in this case and should not be expected to challenge or defend itself. Hence, the claims by Ms Leung on the details of her work with Creative Every Day should not be taken as unchallenged by Creative Every Day. Creative Every Day being not a respondent, simply had not the right to challenge
During the process of hearing, I was questioned whether I have authority and willing to speak on behalf of Creative Every Day which I had replied both yes. As Creative Every Day was NOT named as Respondent, I believed that when I spoke on behalf of Creative Every Day, I should be treated as a witness to provide information. I was not expected to challenge the evidence of Ms Leung related to her working with Creative Every Day.
As representing REJOICE as a Respondent only, it was not my responsibility to challenge the evidence of Ms Leung related to her working with Creative Every Day as this evidence would be irrelevant to our objection of REJOICE as a Respondent. This left most of the statements made by Ms Leung related to Creative Every Day, that is her work-related to Sameway Magazine unchallenged. The conclusion of this information being unchallenged should not be taken as no objection from Creative Every Day or being true. Creative Every Day was simply not authorized or had the responsibility to challenge during or after the hearing.
Because of the absence of a challenge from Creative Every Day about the working of Ms Leung with Creative Every Day presented by Ms Leung as unchallenged, Commissioner Wilson was biased in formulating his findings to the case."[18] (transcript reference omitted)
[14] The fourth of the apprehended bias grounds relied upon by Mr Chow involves the passage within the Jurisdictional Decision as follows:
"[21] The evidence to be considered in relation to whether Ms Leung is an employee or independent contractor is essentially that set out above. The material within Ms Leung's table was not directly contradicted by Mr Chow on behalf of Rejoice and Creative Everyday."[19]
[15] Rejoice submit that this passage was is in error and amounts to a situation in which I ignored pertinent evidence. It is also advanced that in the course of the material provided by Rejoice and Creative Everyday in that hearing that Mr Chow proposed the provision of additional evidence which may have assisted their case which if provided would have led to an alternative outcome.
[16] Mr Chow's fifth ground is to the effect that I was acting as an investigator of the case instead of an arbitrator on the objection to Ms Leung's application, as well as that:
"FWC was established to help both employers and employees to make decisions on disputes. FWC commissioners are supposed to be the judge who is most knowledgeable about the related laws. The procedures of an application and its response do not require the representation of lawyers suggests that it relies on the Commissioner in charge of the case to guide the process to be proceeded as fair as possible under the law.
It should not be expected that Applicant or Respondent to be legal experts to protect their rights nor challenging the hearing. The observance of the duty of the Commissioner is very important to make FWC having the trust of the public.
As a non-legal professional, who spent hours of time to reveal the hearing, the decision and the process, it is not difficult to come to the conclusion that the hearing was not done according to its objective the determine whether REJOICE was the correct Respondent to the case.
The action of Commissioner Wilson was obviously aiming at another agenda, which was to find out whether Creative Every Day should be the Respondent. Commissioner Wilson had used his right in seeking information from Mr Raymond Chow to make a judgment on this issue. This is unlawful and an abuse of judicial power.
I think that information obtained in this unlawful hearing and following processes, should not, and could not be used in future, to against the interest of Mr Raymond Chow. I contest whether Creative Every Day can be named as a Respondent to this case based on the unlawful information obtained."[20]
[17] Mr Chow's sixth ground relates to the passage in the Jurisdictional Decision regarding what I found to be a transferring employment situation:
"After Commissioner Wilson failed to conclude REJOICE and Creative Every Day were associated entities, he had tried to explore whether Ms Leung was a transferring employee, in order to ascertain whether the change of name of Respondent to Creative Every Day was possible. In this process, he had made his decision based on " [57] I am satisfied that the work performed by Ms Leung both before and after the change in engaging entity was the same, or substantially the same."[21]
[18] Mr Chow submitted both that submissions in writing and at the hearing were not replied upon in the decision and that "Obviously, Commissioner Wilson had not investigated the truth of this claim. He did not ask Ms Leung, Mr Chow or had asked for evidence. He had not made his judgment based on evidence."
[19] The seventh ground contends that, having found Rejoice was not Ms Leung's employer at the time her employment ended, the decision should have then left the matter there, and that by considering whether the identity of the Respondent could be amended, such amounts to a predisposition, in turn creating an apprehension of bias. In this regard, Mr Chow submitted:
"On behalf of the Respondent REJOICE, there seems to be no reason for us to disagree the suggestion of REJOICE should not be the Respondent. Our objection was found to be valid and REJOICE should not be named as the Respondent.
However, the decision was unjust and unfair because of naming Creative Every Day as the substituted Respondent as discussed above would be the abuse of power of Commissioner Wilson in this process."[22]
[20] While Mr Chow relies on seven grounds for his application, those grounds are in two categories; first, concerns about the conduct of the hearing and second, concerns about the findings made by me in the Jurisdictional Decision. While there is some overlap both between the two categories, and the grounds Mr Chow relies upon, Grounds 1, 2, 3, 5 and 7 are connected with the first category, the conduct of the hearing, and Grounds 4, 6 and 7 are connected with the second category, the findings made by me in the Jurisdictional Decision. It is noted that Ground 7 especially straddles the two categories.
[21] I take from Mr Chow's submission that Grounds 1, 2, 3, 5 and 7, each detailed above, and referable to how the hearing was conducted as well as the preparatory steps and the events after it, are linked with the first of the Ebner steps inasmuch as it could be argued that the manner in which the hearing so far has been conducted may, to a fair-minded lay observer, exhibit bias, as a result of a supposed predisposition on my part to the Applicant, Ms Leung, and away from the Respondent. The link with the second part of the Ebner steps, the logical connection between the matters identified and the feared deviation from the course of deciding the case on its merits, is the perception that my supposed predisposition will continue and that I will be unable to fairly and equitably determine the remaining matter presently before me.
[22] Before considering the first category, it needs noting that the only matter remaining before me for determination is the proposition indicated at [61] - [62] of the Jurisdictional Decision, namely whether the identity of the Respondent should be amended to Creative Everyday. Such matters of merit as may remain for determination on the other side of the matter of the Respondent's identify have not yet been allocated to me by the Termination of Employment Panel Head.
[23] Ms Leung's application for unfair dismissal remedy was filed in the Commission on 16 January 2019 and Rejoice's response filed on 23 January 2019. After those dates and before the date on which the Jurisdictional Decisions was issued, on 3 May 2019, there were the following key events, relevant to the overall hearing process:
19 February 2019: Conciliation. The Conciliation did not proceed given Rejoice's objection that they were not Me Leung's employer at the time of her dismissal; that Ms Leung was a contractor not an employee; that Rejoice has no authority to settle matter under the legal name identified in the application.
8 March 2019: Directions for filing issued.
18 March 2019: Respondent Submissions filed including jurisdictional objection.
27 March 2019: Applicant Submissions filed.
4 April 2019: F52 Order to produce issued on my own motion against Yin Fun Leung, Rejoice and Creative Everyday for Ms Leung's payslips and details of the members of the committee for both Rejoice and Creative Everyday.
4 April 2019: Documents provided by Yin Leung Fun, Rejoice and Creative Everyday in response to F52 Order. The documents provided by Rejoice and Creative Everyday were sent by separate email, but each came from the same email address with the domain "sameway.com.au".
5 April 2019 (AM): Full Bench decision David Djula v Centurion Transport Co. Pty Ltd [2015] FWCFB 2371 provided to parties to be dealt with at hearing.
5 April 2019 (PM): Jurisdictional Hearing conducted.
10 April 2019: Further submissions invited from parties regarding the number of employees employed at the time of Ms Leung's dismissal.
11 April 2019: Respondent and Applicant submissions filed on the number of employees employed at the time of Ms Leung's dismissal.
11 April 2019: Further submissions invited regarding whether Rejoice and Creative Everyday are associated entities.
12 April 2019: Clarification sought as to whether Respondent is submitting that Applicant is a contractor given the word 'contractor' and 'casual' are used throughout their submissions.
18 April 2019: Respondent submissions filed regarding whether Rejoice and Creative Everyday are associated entities.
23 April 2019: Respondent submissions filed regarding whether Applicant is a contractor. Applicant submissions filed regarding whether Rejoice and Creative Everyday are associated entities.
1 May 2019: Reply submissions filed by Respondent regarding whether Rejoice and Creative Everyday are associated entities and as to whether Ms Leung was a contractor.
2 May 2019: Transcript provided and forwarded to parties.
3 May 2019: Decision issued on jurisdictional matters.
[24] The context of a jurisdictional hearing before the Commission in Melbourne is that the file is allocated to a rostered Member with the expectation that the matter will be the subject of a short hearing, with a standard short time allocated depending on the number and complexity of the issues raised for the purpose. The "fair-minded lay observer" would be familiar with that process and recognise the challenges often presented by such a hearing, and especially when the parties are not represented, or an interpreter is required for one party, as was the case here. The same observer would realise therefore that it will be a usual sub-process for any Member to prepare for the hearing as best they can; checking the material that has been filed, and just as often, the material which has not been filed, but which may well be critical for determination of the assigned matter. They would note that omissions, ambiguities or errors are routinely raised with the parties wherever time permits.
[25] What was assigned in this case was a requirement for determination of Rejoice's jurisdictional objections, set out in its Employer Response Form, the Form F3. Question 2.1 asks "Does the employer have any jurisdictional or other objections to the application?" The Respondent's response and its objections were identified on the form as follows:
"2.2 If you answered yes to question 2.1 - On what basis does the employer object? If the employer objects on multiple grounds you can select more than one from the list below:
[ ] The application is out of time (ie lodged more than 21 days after the dismissal took effect)
[ ] The dismissal was a case of genuine redundancy
[ ] The Applicant's employment does not meet the minimum employment period
[ ] The Applicant earned more than the high income threshold (currently $145,400 per annum)
[ ] The employer is a small business employer and the employer complied with the Small Business Fair Dismissal Code
[26] These objections were elaborated upon as follows:
"1. At the time of dismissal claimed by the Applicant, she was not taking work from Rejoice Chinese Christian Communication Centre Inc (REJOICE) directly. The work history of Ms Leung with REJOICE and our related company is listed in detail as below.
2. Ms Leung was paid by two different companies according to how much of her work came from which parties. There was a period that she was given work from us only. There was also a period that she was not working for the two organizations for personal reasons. In short, her role, time spent on her work at different periods, and type of work changed accordingly with time.
3. Ms Leung was paid by cheques from different companies according to where the majority of work coming from which she was working on. At the time of her claimed dismissal, she was paid by Creative Every Day Pty from March 5, 2018 onwards. The cheque reference in the payment listing (6 digits one are from REJOICE, and the one from Creative Every Day are less than 4 digits). Her annual tax return was also submitted by different companies according to which one her work came from.
January 1 2018 - June 30 2018: Submitted by Creative Every Day Pty
4. The listing of pay cheques issued and received indicates that no work had been given to Ms Leung during the holiday break in December and January every year. Also Ms Leung could choose the period that she did not want to work with us and the time she would like to spend on these projects. Ms Leung would also refuse on our suggested work saying that she could not do it in that timeframe. For example, she had refused to work out some exhibition materials as she thought that not enough time was given.
5. These are evidences that Ms Leung was employed by REJOICE / Creative Every Day Pty at different time as causal worker for their common project (Sameway) and other related work instead of as claimed, a permanent worker as Art Director of REJOICE from December 2011 onwards."
[27] Elsewhere in the document, the Respondent referred to Ms Leung as being a "contractor", for example, with it being stated that:
"3. After she started working with REJOICE for some time, it was discovered that she could not always committed the time as promised. She had to leave the office at certain time while others were working and she would work at her own time at home after working hours. She assumed the role of a contractor instead of a causal worker since then.
4. On July 1, 2012 Sameway became an individual business seperated from REJOICE. Because of this, the work given to Yin Fun was from and paid by Creative Every Day which traded also as Sameway Magazine. Initially an arrangement between Creative Every Day and REJOICE agreed that Yin Fun was still paid by REJOICE until end of January 2013. From January onwards, Yin Fun mainly worked for Sameway but also took up other design work related with REJOICE as her duty. She would inform the administration how much time she should be paid. Yin Fun practically worked as a contractor of Creative Every Day with duties shared between Creative Every Day and REJOICE. Starting from July 14, 2013, Yin Fun stopped working with Creative Every Day for 8 months because of pregnancy. No work was given to her as she wanted to spend more time with her kids."
[28] Other relevant assertions were made by the Respondent in the material it filed before the matter was assigned to me for hearing, including that Ms Leung was a casual, a contractor and a casual in contractor mode throughout her employment with both Creative Everyday and Rejoice. The following timeline of her employment status between 5 December 2011 and 21 December 2018 was provided:
5 December 2011: employed as casual Art Director
5 December 2011 - 30 June 2012: contractor
2 July 2012 - 14 July 2013: casual (in contractor mode)
15 July 2012 - 9 February 2014: unemployed
10 February 2014 - 15 March 2015: casual (in contractor mode)
16 March 2015 - 21 June 2015: casual (in contractor mode)
22 June 2015 - 26 March 2017: casual (in contactor mode)
26 April 2017 - 4 March 2018: casual (in contractor mode)
5 March 2018 - 21 December 2018: casual (in contractor mode)
[29] A chronology was also provided as to the changes in her employer between Creative Everyday and Rejoice in the same period as above as follows:
December 2011: Ms Leung was employed by Rejoice undertaking work for 'the Sameway project'
July 1 2012: Creative Everyday (the Sameway project) and Rejoice became separate companies. Ms Leung began to work for Creative Everyday however, continued to be paid by Rejoice owing to an agreement between the companies
January 2013: Ms Leung predominantly worked for Creative Everyday but also understood design work for Rejoice and as such was paid by both
10 February 2014: Ms Leung began to work for Creative Everyday only
16 March 2015: Ms Leung worked both for Creative Everyday and Rejoice
21 June 2015: Ms Leung worked for Rejoice only
27 March 2017: Ms Leung was assigned work from Creative Everyday while in Hong Kong however, did not complete such work. When Ms Leung returned from Hong Kong at an unknown time, she worked for Rejoice only.
5 March 2018: Ms Leung worked for Creative Everyday only
28 November 2018: Ms Leung ceased work for both companies
[30] The fair-minded lay observer, with familiarity with the context of the decisions required to be made, would be mindful of the determinative difficulties these matters might present. The same observer would understand that assertions that an applicant was not an employee and had not been dismissed, or at least had not been dismissed by the named Respondent, or in fact was not an employee at all, but instead a contractor, dramatically balloons the matters requiring determination by the Commission in a jurisdictional hearing. They would also note from the materials filed by Rejoice in preparation for the hearing that there was a somewhat less than certain status both of the form of Ms Leung's engagements, as well as which entity engaged her, with it being said in the Employer Response form;
Ms Leung's work history was both "with REJOICE and our related company";
She was "paid by two different companies according to how much of her work came from which parties" and "Ms Leung was paid by cheques from different companies according to where the majority of work coming from which she was working on"; and
"Ms Leung was employed by REJOICE / Creative Every Day Pty at different time as causal worker for their common project (Sameway) and other related work"
[31] At the very core of the matter, it would likely be understood by the reasonable observer that the Commission would need to test all aspects of whether the employee was a person protected from unfair dismissal in the manner set out in s.382 of the Act. The fair-minded lay observer would be unlikely to be concerned that my determination of that issue was not only proper, but essential.
[32] Mr Chow submits that several matters associated with the hearing would reasonably likely apprehend bias.
[33] He now takes issue with me ordering both named parties and Creative Everyday to provide payslips for the work Ms Leung performed, referred to above, in which he argues that it was unfair on Creative Everyday to be ordered to provide evidence, with it being "forced to provide information", with it also being unfair to Mr Chow in the hearing "as he was supposed to be representing REJOICE making evidence under oath but to be requested to provide information which may be used to against his interest in Creative Every Day".[23] The fair-minded lay observer would note that no objection about the order was raised at any time by any person, and there were no endeavours by anyone to have the order varied or set aside. The same person would also note that Mr Chow said in the hearing that not only did he have authority to speak for Creative Everyday, he was "happy to do so".[24] Even so, and on balance, the observer would likely be unperturbed by the order, realising that the absence of real evidence on the crucial issue of payments made to Ms Leung by which entities, would greatly assist determination of whether she was a person protected from unfair dismissal, and that, in fact, the absence of comprehensive evidence on the subject would impede the accurate determination of the question.
[34] Mr Chow also raises concerns about having been asked in the hearing about whether he spoke for Creative Everyday as well as Rejoice; that the hearing was an "investigation"; and that Ms Leung did not ask for a change to the name of the Respondent.
[35] The fair-minded lay observer would note that Mr Chow was asked if he had authority to speak on behalf of Creative Everyday and was willing to do so, and that he confirmed he had such authority and was "happy to do so".[25]
[36] The same observer would also note that the process of establishing the evidence in this matter was not without its challenges not only for the reasons referred to above, but also because the responses provided by each in the overall course of the proceeding were often unclear and ambiguous, as well as being guarded. The observer would not have heard or read improper questions, or ones that did not allow the person responding an opportunity to provide complete answers in accord with the obligations of procedural fairness, while recognising the disadvantage an unrepresented party holds in Commission proceedings, which may include eliciting relevant facts through questioning in a fair way, or a need to ask questions of a witness in relation to relevant matters, with it being accepted that while the answer may tend to favour one party's case or that of the other does not speak to unfairness or to apprehended bias.[26] There is no reason that such questioning is limited to the confines of a hearing involving the attendance of parties, and does not extend to the other interactions had with the parties, such as through email, as was the case here.
[37] In relation to Mr Chow's concern that Ms Leung did not ask for a change to the name of the Respondent, the fair-minded lay observer would note that it is correct that she did not do so in the hearing, but would note that Ms Leung made a written request for this to be done if necessary in her submissions stating "Despite not being told, based on the "employer response form" provided by Raymond, I understand my employer at the end of my employment was Creative Every Day, and if that is correct, I wish to make my application against that employer."[27]
[38] Mr Chow also refers, in ground 5 to certain action that he regards as unlawful - and in particular "unlawfully asking Mr Raymond Chow to provide information to help him to determine whether Creative Every Day should be the Respondent of the application of Ms Leung",[28] with it being said that, being obviously "aimed at another agenda" this was an abuse of judicial power".[29] These contentions were not meaningfully developed in Mr Chow's oral submissions, and no means of an objective assessment of the claim of unlawfulness has been put forward by him. It is likely that what he means to say is that, being intent on a plan of moving the hearing to matters that would help Ms Leung, I improperly exercised the discretion I hold under s.590(2) of the Act to inform myself in such manner as considered appropriate. If that is what he intends to argue, such would be contrary to the observation a fair-minded lay observer would make about the need for further and better particulars on the subjects before the Commission and referred to above, to the effect that the absence of real evidence on the crucial issue of payments were made to Ms Leung by which entities, would greatly impede determination of whether she was a person protected from unfair dismissal, and that, provision of the accurate material would assist determination of the question. The same fair-minded lay observer would also note that at no time before his apprehended bias application did Mr Chow object to the provision of the information to the Commission. Consequently, the reasonable observer would neither apprehend that the material was required by me "unlawfully" or that the manner of seeking the information predisposed me to bias against the Respondent in finalisation of its jurisdictional objections against Ms Leung's application.
[39] Mr Chow's submissions also refer in two places, in the fifth and seventh grounds, to there being an abuse of judicial power or abuse of power. Again, these matters were not meaningfully developed in Mr Chow's oral submissions, and the overall context of the proceedings would not reasonably lead to the view that any actions taken by me were an "abuse of power" or that anything said or done by me predisposed me to bias against the Respondent in finalisation of its jurisdictional objections against Ms Leung's application.
[40] In finality, the fair-minded lay observer would not have discerned from any part of the jurisdictional hearing process a predisposition on my part to the Applicant, Ms Leung, and away from the Respondent. They would also accept that there is no logical connection between the matters identified by Mr Chow and the feared deviation from the course of deciding the remaining case on its merits which, after all, is for present purposes limited to the matter of whether the identity of the Respondent should be changed from Rejoice to Creative Everyday. With no predisposition reasonably having been identified, the same observer would have accepted that my continued dealing with the matter would be proper and that no reasonable apprehension arises that I will do other than fairly and equitably determine the remaining matter presently before me.
[41] Mr Chow's fourth and sixth grounds point to perceived problems in the published Jurisdictional Decision, with the implication being that what are argued to be errors in the decision would reasonably lead to an apprehension of bias. In particular, if the impugned paragraphs contain errors, and unreasonably do so, being the first Ebner step, then the feared deviation from the course of deciding the case on its merits, would be that likely further errors would occur and that I will be unable to fairly and equitably determine the remaining matter presently before me, being the question of the substitution of the identity of the Respondent.
[42] In his fourth ground of apprehended bias, Mr Chow argues that the second sentence in paragraph [21] of the Jurisdictional Decision, set out below, is contradicted by the evidence. The paragraph, with the second sentence underlined for present purposes, reads:
"[21] The evidence to be considered in relation to whether Ms Leung is an employee or independent contractor is essentially that set out above. The material within Ms Leung's table was not directly contradicted by Mr Chow on behalf of Rejoice and Creative Everyday."[30]
[43] I agree with Mr Chow; the second sentence is wrong and apologise to him for the error. The sentence was included in an early draft of the decision, and not removed by me during the editing process. While the sentence is incorrect, a reasonable reading of the Jurisdictional Decision would show that to be the case, and that Mr Chow's submissions on the matter of Ms Leung's contractual status were taken into account by me (see paragraphs [24], [26], [27], [38]). The following paragraph of the Jurisdictional Decision confirms that Rejoice's submissions were taken into account that to be the case: "...I have also had regard to Mr Chow's submissions, which included these matters ...".[31]
[44] The reasonable observer would note the contentions made by Mr Chow about Ms Leung's contractual status. His first submissions made these arguments;
Ms Leung sought to be employed originally as a permanent part time employee however, that that request was denied by the Respondent and she was instead employed as a casual;
Ms Leung's hours of employment fluctuated as did the location she performed her work due to her personal circumstances and as a result her role transferred from casual to contractor and gave a limited chronology of Ms Leung's engagements throughout the period of those engagements.
[45] Mr Chow's reply submissions covered substantially the same matters as above with some additional information including in response to Ms Leung's submissions that she reported to Mr Chow throughout her employment; that the control over Ms Leung's work by Mr Chow was limited in that she was not given technical direction from Mr Chow, only direction as to the purposes of her work and the effectiveness of her artwork in achieving that purpose. Additionally, Mr Chow led evidence that while Ms Leung had access to a computer at work her preference was to use her own notebook as she had access to MAC whereas Rejoice and Creative Everyday did not. He also argued, in response to Ms Leung's contention that she was entitled to sick leave public holidays "this is not true as she was paid an agreed sum upon agreed workload no matter it was public holiday or whether she was sick...".[32]
[46] The fair-minded lay observer would note the error made in paragraph [21], but also the wider context of the Jurisdictional Decision, and would conclude that while errors are regrettable, the overall decision records that Ms Leung's material was contradicted by Mr Chow and that the decision properly records the competing arguments and endeavours to strike a balance on the evidence actually before the Commission. The same observer would not reasonably apprehend bias because of the error, or an inability to continue to deal with the matter.
[47] The sixth ground relied upon by Mr Chow relates to the finding at paragraph [56] of the Jurisdictional Decision which made the following finding:
"[57] I am satisfied that the work performed by Ms Leung both before and after the change in engaging entity was the same, or substantially the same. I am also satisfied that Rejoice outsourced to Creative Everyday the work that Ms Leung performed once performed for it directly, with it being said that, with reference to Ms Leung's work, "the work change so much that we changed the employer". After consideration of these matters I am satisfied that Ms Leung was a transferring employee, subject to a transfer of employment, in relation to a transfer of business between Rejoice and Creative Everyday."[33]
[48] Mr Chow argues that this finding was made without asking Ms Leung or Mr Chow for evidence on the subject and that the finding was not made on evidence.[34] The finding makes reference to things said by Mr Chow in the hearing, referenced at transcript paragraphs PN 244, 270 and 313. The exchanges around those paragraphs include the following;
"MR CHOW: You can see from the cheque that's received later, because after 27 March, all right, we could no longer give the work of the magazine to her because the way that she work - because she was missing from 3.00 to 8.00 in the daytime, which everybody was delayed much. Without her working for that position, everybody finish by 6.00 or 7.00 and that was because of this I told Ms Leung that we could no longer give her the job for the magazine "but we still happy that you work for Rejoice", so that's why her work was reduced by half.
Since that time she was not allowed to work with the magazine and that was reflected in the pages of the - her name was no longer being kept there. On my record, when she returned from April I try to, I would say persuade my other colleagues to give her a chance, so we had asked them to separate for a while, but finally her name was taken off from - a few months later, from 2017. Since then her name did not appear on the magazine any more until March 2018. This is the evidence that she was not been working with the magazine in the period that we mentioned because we try to be accurate in recognising people who work in what capacity.
You can see that from mid 2017 to 5 March 2018, the name of Ms Leung was absent from the magazine and it was being reflected in the R3 that I sent you. In R3, I've got two consecutive pages. One page her name was not there, but the following the page the name was there again. It was in the R3 exhibit that you mentioned. That was the evidence that we want to show the Commission that the period - there was a period that she was no longer working in the magazine and during the period she was not coming back to the office any time; only once a week to a meeting for an hour with me. Otherwise, she worked at home for the projects we did at Rejoice and that is the working mode that we have been working with.
That was reflected in the amount of work she received from us, which is half the workload for a long time, and it was at 5 March that the other members of Sameway had left and also at the time Sameway shifted to be bi weekly. That is, we no longer publish every week, we publish every two weeks, and it was that we discussed with Ms Leung that she could handle it herself for a publishing for every two weeks. I hope you understand that. If we working on a weekly capacity it was a very hectic team. We need to be running things very fast, but when we started from October 2017, it was - Sameway changed to be bi weekly. Since then we find that the work was much more easier, much more slow, and we could give more time.
At the time we still had someone working on that, however, these are casual workers. They no longer work for us in the beginning of 2018, so we invited Ms Leung to work - to see whether she can manage all of it by herself and she said she could, and so we resume her work with Sameway from 2018; March onwards. I am trying telling you that it was that period that she change - the work change so much that we changed the employer, because she was - originally before 2017 she was with both projects, the magazine and also some projects we did at Rejoice, but mainly with the magazine. However - - -"[35]
"THE COMMISSIONER: Just one minute. All right. I'm interested in what occurred in March 2018 to say to Ms Leung, "We're going to stop paying you under Rejoice and we'll start paying you under Sameway."
MR CHOW: The reason, as I mentioned, during the period she was paid by Rejoice because she no longer worked with the magazine. She was not allowed by other members of the team to work with the magazine because that would slow down their work.
MR CHOW: But by March - by early February, all right, the last member, the one who do the magazine, had left. At that time it was no longer a weekly magazine, it was a bi weekly one, so we think that a bi weekly one she can organise her time by herself, any time she can work with that, and so we employ her for the magazine's work.
THE COMMISSIONER: Yes. However, that doesn't really address my question. The question was what was done by Rejoice or Sameway in March 2018 to say, "We're no longer paying you under Rejoice. We're going to pay you under Sameway?"
MR CHOW: Because the work changed. You know, before that she could only work for a few projects with Rejoice only, but the projects are not (indistinct) Sameway.
MR CHOW: That's why it was paid under Rejoice. However, after 5 March she took over the whole operation of Creative Every Day and that was why she was paid by Creative Every Day. That is why the work totally change during that period.
THE COMMISSIONER: One of the things that Ms Leung said to me that you would have heard, Mr Chow, is that - I asked her the question of the work she was doing last year and she said that she was doing work in relation to the Sameway Magazine but also preparing promotional material continuously for Rejoice. Would that be the case?
MR CHOW: Yes. As I mentioned, all right, because we need someone to employ - give her work, but the work - there's some work - Sameway worked together with Rejoice. Like, for example, we hold exhibition in Box Hill for some gathering. That was being held, all right, by Sameway together with Rejoice and Rejoice pay Sameway for doing so. That was why the work was being given to her. Every year Rejoice pay the amount of money to - sorry, every year Rejoice pay a certain amount of money to Sameway to take care of their design or promotion work. That been done every year.
There is some transition between Rejoice and Sameway. Say, for example, Rejoice run the community centre. It costs two pages in Sameway as advertising and so Rejoice pay Sameway - pay the company - for the work done by Sameway on the promotion work. That was why there's some work of Ms Leung that is related to Rejoice. Not because Rejoice is the employer, but because Rejoice pay Sameway to do so."[36]
"MR CHOW: I am very sorry that the two companies have certain transition between them because of their origin; because Sameway started originally from Rejoice. However, they are two different entities. They are different - one is media which is related to promotion and the other would be on community development. That's what they overlap. You can see that - I'm not surprised to listen to - to hear that Ms Leung mentioned that she worked for both Rejoice and Sameway, but it was interesting to notice that from March 2017 to March 2018, all right, she no longer was listed on Sameway Magazine and that resume after 5 March of 2018, which reflected that she was no longer being seen as working with Sameway at that time.
That was a result of when people discover that if she did not take the work of magazine, we all finish early. It was very much easier and that was because - for a long time we tried to include her service, so we need to have her absence from 3.00 in afternoon to 8.30 because she had to take care of her three kids by herself, you know, in their home."[37]
"THE COMMISSIONER: All right. Can I maybe just ask you one final question. You would have heard at the start me putting a proposition to Ms Leung that perhaps she has commenced the action against the wrong employer. If she were to make an application to substitute the name of Creative Every Day Pty Ltd trading as Sameway for what is presently shown as Rejoice, would that be agreed by Sameway?
MR CHOW: Commissioner Wilson, I need to draw your attention that her employment in the past two years - she has stopped working with Sameway from March 2017 to March 2018 and that was why, all right, she was employed by Rejoice; but after 5 March 2018, her work now change - totally change. Not just for the ministry project for Rejoice, but it change mainly for the operation of Sameway. It was because of this she started a new employment with Sameway at that time.
Sameway only have about three or four staff working and she did not work for the whole year for us. I don't think, you know, she would be qualified for the Fair Work Commission to tackle with the dismissal process. Am I correct? That is, by change of name to Creative Every Day it doesn't cause anything that we should respond to, but I'm happy, you know, if there is a case that you shift to that, but I just notice that - I draw your attention that her work with Sameway started again in 5 March of 2018. Before that she did not work for Sameway, so the substitution still make her ineligible to appeal to the Fair Work Commission. Am I correct?
THE COMMISSIONER: Can I just deal with the proposition you were dealing with first and then I'll come back to that, so just a moment. So far as you're aware, Mr Chow, is Creative Every Day an associated entity of Rejoice?
MR CHOW: No, because they have different management, they work for different purposes. Rejoice itself has their own staff. They run a community centre. Rejoice bought - does not do anything about Sameway since 2012.
MR CHOW: They have no control on Sameway Magazine since then. Since then we work with two names together. For some project we have to work - we work together, but there are not many that we work together now."[38]
[49] What emerges from the foregoing passages are that the questions of whether Rejoice and Creative Everyday were associated entities was under discussion, as was the terms upon which Ms Leung's employment shifted from one to the other. The fair-minded lay observer would form the view from these exchanges that the finding made in the Jurisdictional Decision was reasonable and based upon evidence available to the Commission. The same observer would not apprehend bias from the discussion about these matters, the Jurisdictional Decision's findings or that because of those things there is an inability to continue to deal with the matter.
[50] The further context to the second category of complaint, and in particular that part of Ground 7 which connects with this category, is that there is only one, limited, matter remaining for determination. That matter is whether the identity of the Respondent should be changed from Rejoice to Creative Everyday. On the basis of the material presently before me determination of that matter likely will be founded only upon a consideration and application of the relevant principles. It is entirely open to any affected party to argue either that the principles are not as I have summarised, or that they do not apply in this case. Djula makes clear that whether a change may be made is both a matter of the facts and evidence before the Commission at the time, as well as a matter of discretion.[39] Nothing reasonably emerges from the contentions put forward by Mr Chow that would lead to the fair-minded lay observer forming the view that any past indication or action of mine would lead to a pre-determined result. The indication of a preliminary view at paragraph [62] of the Jurisdictional Decision is no more than an indication that Ms Leung has "made an innocent mistake" and a summary of the relevant evidence. The fair-minded lay observer would both understand that the Commission's process includes providing parties with a preliminary view, together with the opportunity to respond, and that such opportunity for greater exposition and understanding of the matter in question will oftentimes lead to a result different to that originally indicated.
[51] As a result, no finding can reasonably be made in relation to the second category of concerns raised by Mr Chow that there are grounds for me to no longer deal with Ms Leung's application.
[52] Having considered all parts of Mr Chow's contentions of apprehended bias, none are substantiated, and there is therefore no impediment to me continuing to deal with Ms Leung's application. The matter will remain listed before me and the parties will be notified shortly of a time to conclude the hearing on the subject of whether the identity of the Respondent should be changed from Rejoice to Creative Everyday.
[1] Employer Response Form, Form F3, dated 21 January 2019, item 2.2.
[4] Transcript, 16 May 2019, PN 32; PN 48 - 53.
[5] Exhibit R6, Mr Chow's Correspondence to the President, dated 10 May 2019.
[6] With the distinction between actual and apprehended bias summarised by Asbury DP in Woolston v Uniting Church in Australia Property Trust (Q) T/A Blue Care Bli Bli Aged Care Facility, [2015] FWC 5853, [12] - [ 13]; appealed, but findings not disturbed on appeal (see [2016] FWCFB 278).
[7] See Transcript, 16 May 2019, PN 32 - 51.
[11] Ibid, [441]-[443], [8]-[23].
[12] Transcript, 16 May 2019, PN 22 - 30.
[25] Transcript, 5 May 2019, PN 69 - 72.
[26] Bronze Hospitality Pty Ltd v Janell Hansson, [2019] FWCFB 3456, [28].
[27] Exhibit A1, Applicant Outline of Arguments Objections, dated 27 March 2019, Q.6a.
[32] Respondent's Reply Submissions, 1 May 2019, pp.2 of second attached document.
[35] Transcript, 5 May 2019, PN 238 - 244.
[39] Mr David Djula v Centurion Transport Co. Pty Ltd [2015] FWCFB 2371, see [26] and [31].
Printed by authority of the Commonwealth Government Printer
Yin Fun Leung
Rejoice Chinese Christian Communication Centre [2019] FWC 3669
The apprehension of bias principle is stated in Ebner v The Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 at [6] where Gleeson CJ, McHugh, Gummow and Hayne JJ said (subject to qualifications relating to waiver and necessity):
However, as the majority observed in British American Tobacco Australia Services Ltd v Laurie [2011] HCA 2; (2011) 242 CLR 283, the lay observer is the "yardstick", and in this regard:
(2000) 205 CLR 337
(2011) 242 CLR 283
(2000) 201 CLR 488
(2011) 202 FCR 439
(1986) 161 CLR 342
(1988) 13 NSWLR 502
(1989) 167 CLR 568