1
Fair Work Act 2009
s.604—Appeal of decision
Bronze Hospitality Pty Ltd
v
Janell Hansson
(C2019/2847)
DEPUTY PRESIDENT GOSTENCNIK
DEPUTY PRESIDENT MASSON
COMMISSIONER BISSETT
MELBOURNE, 21 MAY 2019
Appeal against decision [[2019] FWC 2911] of Commissioner Wilson at Melbourne on 1
May 2019 in matter number U2018/6613 – apprehended bias – appealable error identified –
permission to appeal grant – appeal upheld – decision quashed – recusal application reheard
by full bench – application dismissed.
Background
[1] Bronze Hospitality Pty Ltd (Appellant) employed Janell Hansson (Respondent) from
28 November 2017 as a casual employee and later from about 21 January 2018 as a full time
employee. The Appellant dismissed the Respondent with effect from 7 June 2018.
Subsequently the Respondent applied for an unfair dismissal remedy pursuant to s.394 of the
Fair Work Act 2009 (Act). The application was allocated to Commissioner Wilson.
[2] The Appellant contended before the Commissioner that the Respondent was not
protected from unfair dismissal because she had not at the time of dismissal served the
minimum employment period, as required by s.382(a) of the Act. The contention was
advanced on two bases. First, the Appellant contended the Respondent’s period of
employment as a casual was not on a regular and systematic basis and that the Respondent did
not have a reasonable expectation of continuing employment on that basis. In the result the
period of service as a casual would not count as service for the purposes of calculating the
minimum employment period.
[3] Secondly, the Appellant contended that it was, at the time of the Respondent’s
dismissal, a small business employer within the meaning of s.23 of the Act with the
consequence that even if the Respondent’s casual period of employment was counted in
calculating the minimum employment period, she had not completed the minimum
employment period of one year ending at the time of dismissal.
[2019] FWCFB 3456
DECISION
E AUSTRALIA FairWork Commission
[2019] FWCFB 3456
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[4] By decision issued on 18 September 20181 (Jurisdiction Decision), the Commissioner
rejected both contentions, concluding the Respondent was, during the initial period of casual
employment, employed on a regular and systematic basis and that during the period she had a
reasonable expectation of ongoing employment on that basis. Consequently the entire period
of her employment between 28 November 2017 and 7 June 2018 counted as service towards
determining the minimum period of employment. The Commissioner calculated the period of
employment as slightly more than six months and one week.2
[5] As to the question whether the Appellant was a small business employer, there was a
contest as to whether four employees described in the Jurisdiction Decision as the “Four
Contested Employees”, who had worked some hours as casual employees for the Appellant,
should be counted in the number of employees employed by the Appellant at the time of the
Respondent’s dismissal. The Commissioner concluded that the Four Contested Employees
should be counted and as a result, at the date of the Respondent’s dismissal, the Appellant did
not employ fewer than 15 employees and so was not a small-business employer. 3
[6] The Appellant sought and was granted permission to appeal against the Jurisdiction
Decision. In dealing with the substantive appeal a Full Bench of the Commission upheld the
grounds of appeal directed to the small business employer conclusion and quashed that part of
the Jurisdictional Decision. However the Full Bench rejected the ground of appeal directed to
the counting of the Respondent’s period of casual employment and confirmed the
Commissioner’s decision in that regard4. The Appellant’s jurisdiction objection that it was a
small business employer and that the Respondent had not served the minimum employment
period of one year was remitted to the Commissioner for redetermination5.
[7] When the matter returned, the Appellant made application to the Commissioner that he
recuse himself on the ground of apprehended bias. By reference to the Commissioner’s
questioning of the Respondent during the jurisdictional hearing and conclusions reached in
the Jurisdiction Decision, the Appellant advanced several grounds for recusal. In essence the
Appellant contended that taken together, these grounds disclosed a proper basis for
disqualification of the Commissioner for apprehended bias. By decision published on 1 May
20196 (Recusal Decision) the Commissioner refused the application.
[8] The Appellant has applied for permission to appeal and appeals the Recusal Decision.
It also sought expedition. We granted an expedited hearing of the application for permission
to appeal and we decided to hear the merits of the appeal together with that application
because the redetermination hearing before the Commissioner is scheduled to proceed on 27
May 2019.
1 [2018] FWC 5665
2 Ibid at [26]
3 Ibid at [43]
4 [2019] FWCFB 1099
5 Ibid at [48]
6 [2019] FWC 2911
[2019] FWCFB 3456
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Consideration
Appeal grounds
[9] By its amended notice of appeal the Appellant sets forth three appeal grounds. The
first contends the Commissioner failed to properly address the grounds for the application.
The Appellant contends that the Commissioner did not deal with its submission that through
his questions to the Respondent the Commissioner suggested that the Respondent had been
told when she was employed as a casual, that if things went well she would be a permanent
employee. The Appellant contended before the Commissioner that the manner in which the
question was put involved a suggestion of an answer that would be favourable to the
Respondent, and that it was out of the blue, that is, without any earlier factual foundation.
[10] The second appeal ground contends the Commissioner applied irrelevant principles to
deal with parts of the Appellant’s concerns as to apprehended bias. The Full Bench had
concluded that the Commissioner had made incorrect findings of fact in the Jurisdiction
Decision by concluding at [8] and [25] that certain evidence had been given by the
Respondent when it had not.
[11] The Appellant contends in essence that the Commissioner’s observation that those
findings related to a ground of appeal which the Full Bench rejected and his reliance on that
fact to reject the Appellant’s apprehended bias argument was erroneous. Similarly the
Appellant contends that the Commissioner’s reliance on the fact the Full Bench had remitted
the matter to him as a basis for rejecting the Appellant’s apprehended bias argument was also
erroneous.
[12] The third ground of appeal concerns matters that arose after the Commissioner
delivered the Recusal Decision. The Commissioner refused an application by the Appellant to
vary an order for production of documents on the basis that the order should be directed to
documents relevant to the employment of the disputed cohort of employees for the purposes
of counting the number of employees in assessing the small-business employer issue. There
are a number of employees of the Appellant whose inclusion in the number to be counted was
apparently not in dispute. The Commissioner declined to vary the order. The Appellant
contends that the Commissioner’s reasons for rejecting the Appellant’s application suggest
that the Commissioner had already made up his mind regardless of the Appellant’s
submissions.
[13] This ground is not properly a ground of appeal that arises from the Recusal Decision.
Rather it is a matter which is put as a further basis for the apprehended bias application in the
context of a rehearing by this Full Bench and we treated it as such.
Permission to appeal
[14] We are satisfied that the first and second appeal grounds identify an arguable case of
appealable error and that they engage the public interest. The appeal grounds raise the
prospect that the Commissioner did not deal with a material argument raised by the Appellant
with the consequence that the Commissioner failed to take into account this consideration in
arriving at the Recusal Decision. These grounds also raise the prospect that the Commissioner
took into account an irrelevant consideration because he did not appreciate the argument that
was being advanced as to the erroneous factual findings made in the Jurisdiction Decision.
[2019] FWCFB 3456
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That applications for disqualification of a Member on the ground of apprehended bias should
correctly be dealt with raises the public interest. We are therefore satisfied, in light of the
arguable appealable errors identified, that permission to appeal be granted in the public
interest and we do so.
The appeal
[15] We turn then to consider the appeal. In its submissions in support of the recusal
application, the Appellant contended that “notwithstanding that the Applicant did not adopt
the Commissioner’s suggestion in PN 46 nor give any evidence about permanent employment
the Commissioner went-on to put an even-more leading question” 7. The Appellant then set
out the passages of the transcript at PN 52 and PN 53 about which it complained 8.
[16] At PN 52 the Commissioner asked the Respondent: “the period as a casual employee,
was it held out to you that if things went well you would be a permanent employee?” 9 The
Respondent’s answer was not responsive to the question and, as the Full Bench noted in its
decision, it certainly was not “yes”10.
[17] This aspect of the Commissioner’s questioning of the Respondent was part of the
Appellant’s complaint that the Commissioner had involved himself in eliciting evidence in a
manner that appeared designed to assist the Respondent’s case. The Commissioner deals with
this aspect of the Appellant’s complaint as follows:
“[31] The First Apprehended Bias Ground deals with the subject of leading questions
having been asked of Ms Hansson. The matter contended by Bronze Hospitality
involves this exchange:
“THE COMMISSIONER: What I need you to do is just tell me how that
employment came about, how you think it was regular and systemic and then
how it changed into ongoing employment after the end of January 2018.
MS HANSSON: Okay. So when I applied for the job via Seek, I recall that
pretty much the very next day I went in for a trial and received a casual
position that night. The reason I believe it was regular and systematic was just
due to the fact I was doing more hours sometimes as a casual than I even did as
a full timer; up to sometimes 70 hours a week and no less than sort of eight
fortnights at 65 hours per fortnight. That is when after about a month I got
offered a full time position that ours a didn't take effect until 22 January, so a
month after I was already offered the position.
THE COMMISSIONER: Who came to offer you the full time position?
MS HANSSON: At the time it was actually the original venue manager, Jarrod,
but he was dismissed at the time and then I guess the next senior manager,
Hamish Laird, then continued to give me the position.
7 appeal book at 88
8 appeal book at 88
9 appeal book at 42
10 [2019] FWCFB 1099 at [40]
[2019] FWCFB 3456
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THE COMMISSIONER: All right. Does that mean Jarrod said to you, "We
want you now to work on a permanent basis?" Was he the first one to say that?
MS HANSSON: I was basically asked from the moment I set foot in The
Harbour Terrace to basically be the reliable one. I would say, yes, from the
moment I was there I was asked - it was going to be busy, it was Christmas
period, school holidays, and to expect I would have a lot of hours. I think on
one, even, fortnight I did something like 80 hours.
THE COMMISSIONER: All right. Are you saying then that when you started
in November, you believed - well, let me turn this around. What did you
believe about what would be occurring with your future employment?
MS HANSSON: Well, I would assume after starting at the beginning of the
holiday period that I was going to expect regular work due to the fact that they
told me it was their busiest period.
THE COMMISSIONER: All right. Am I correct in saying that you were told
initially it was a trial period of employment?
MS HANSSON: No, just for the actual two hours I did originally.
THE COMMISSIONER: I see. That's what you meant. All right.”
[32] Bronze Hospitality also expressed a concern about the question posed in PN 46,
first posed as a question about “November”, and then about Ms Hansson’s belief at the
start of her employment.
[33] In context the questions asked of Ms Hansson were nothing more than an
endeavour to elicit an understanding of her case. She said, with some degree of
ambiguity in response to an open question that the person who offered her a full-time
position was “Jarrod, but he was dismissed at the time and then I guess the next senior
manager, Hamish Laird, then continued to give me the position”. What could be made
of that response without clarification is open to debate. The questions that followed,
“Does that mean Jarrod said to you, "We want you now to work on a permanent
basis?" Was he the first one to say that?” were an endeavour to clarify the response.
The proposition that Jarrod had been the person to offer Ms Hansson the full-time
position had already been mentioned by her. The question referencing “November”
was withdrawn and an open question put to Ms Hansson instead.
[34] A fair-minded lay observer would not find the exchange to be inappropriate or
beyond the boundaries of legitimate intervention in order to proceed in a manner
which is quick, informal and avoids unnecessary technicalities so as to get to the heart
of matters as directly and effectively as possible, but without a failure to be seen to act
in a manner that is fair and just to each party.
[35] Neither party was represented by a lawyer or paid agent and the material before
the Commission was somewhat basic and not susceptible to a comprehensive
narrative. Other than the framing of the question itself, Bronze Hospitality point to no
other conduct that may lead to the view that Bronze Hospitality were not accorded a
fair opportunity to present their case. The fair-minded lay observer listening to the
[2019] FWCFB 3456
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exchange between myself and the Applicant would have been unlikely to discern an
unreasonable or even unusual intervention in the case that she was endeavouring to
put. The same observer would have noticed similarly leading questions being directed
to Mr Thorpe as well as to Ms Hansson.
[36] To the extent that the foregoing interaction with the parties in the first instance
hearing and within First Apprehended Bias Ground amounts to a failure to accord
either party procedural fairness, such was not raised on appeal or found to be so by the
Full Bench. Instead, the relevant grounds of appeal related to the analysis conducted in
the decision and the subsequent findings made. The First Ground does not reasonably
identify what it is said might lead me to decide the remitted case other than on its legal
and factual merits; and does not provide an articulation of the logical connection
between what has been said and the feared deviation from the course of deciding the
case on its merits11. [Endnotes omitted]
[18] It seems clear enough that the Commissioner did not deal with the Appellant’s
complaint about the manner of questioning recorded at PN 52. This was a material submission
with which the Commissioner was obliged to engage but did not do so. It is a matter that was
plainly relevant to the Commissioner’s consideration of the Appellant’s recusal application. It
was not addressed. The Commissioner was therefore in error and this ground of appeal is
upheld.
[19] At [37] of the Recusal Decision the Commissioner deals with the second of the
Appellant’s complaints as to apprehended bias. As is clear from the written submissions of
the Appellant before the Commissioner, this complaint related to the manner of questioning of
the Respondent by the Commissioner with the additional element that the Commissioner
made findings of fact arising from the questions which were contrary to the evidence given.
The Appellant had contended that taken together these matters raised apprehended bias12. On
this issue the Commissioner’s decision was as follows:
“[37] Bronze Hospitality’s Second Apprehended Bias Ground deals with the argument
that there were incorrect factual findings against the evidence. The ground particularly
refers to paragraphs [8] and [25] of the first instance decision. Those paragraphs may
reasonably be regarded as connected with Appeal Ground 3, being an analysis of Ms
Hansson’s working arrangements leading to the finding made in the first instance
decision at paragraph [26] that Ms Hansson’s employment as a casual was regular and
systematic. Given that Appeal Ground 3 was not upheld by the Full Bench, which
found the conclusion that Ms Hansson’s employment as a casual was regular and
systematic “was plainly open to the Commissioner”, with there being “an ample basis
in the evidence for the Commissioner to conclude that Ms Hansson’s period of
employment was on a regular and systematic basis” and it being a “correct
conclusion”, no apprehension of bias reasonably arises from the those aspects of
Bronze Hospitality’s submissions on the Second Apprehended Bias Ground dealing
with paragraphs [8] and [25] of the first instance decision.” 13 [Endnote omitted]
11 [2019] FWC 2911 at [31]-[36]
12 appeal book at 88
13 [2019] FWC 2911 at [37]
[2019] FWCFB 3456
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[20] The Commissioner’s reasoning does not engage with the essential proposition
advanced by the Appellant. It is not to the point that the Full Bench ultimately found that the
Commissioner correctly concluded that the period of casual employment of the Respondent
should be counted. The essential proposition that was being advanced by the Appellant was
that taken together, the nature of the questioning of the Respondent by the Commissioner and
the conclusion reached by the Commissioner on those matters contrary to the answers actually
given, had the result that a fair-minded lay observer might reasonably apprehend that the
Commissioner might not bring an impartial mind to the resolution of the question that the
Commissioner was required to decide. In other words, the Appellant was contending that the
manner of questioning and the erroneous fact-finding might suggest that the Commissioner
was predisposed to the Respondent’s case and that he therefore might not resolve the question
before him impartially. As is evident from the passage extracted from the Recusal Decision
above, the Commissioner does not engage with that central proposition. In failing to do so the
Commissioner was in error and this appeal ground is therefore upheld.
[21] These two matters provide a sufficient basis to uphold the appeal and we do so. It is
unnecessary therefore to deal with the second aspect of the second appeal ground. It is
appropriate to quash the decision and to rehear the application for disqualification for
ourselves.
Rehearing of recusal application
[22] The principles relating to disqualification on the ground of apprehended bias are not
seriously in contest. These principles are found in Ebner v Official Trustee in Bankruptcy14
and were usefully summarised by Middleton J in Kirby v Centro Properties Limited (No 2)15
as follows:
“The principles respecting disqualification for apprehended bias represent a balance
between two competing policy considerations, namely the maintenance of public
confidence in the judicial system, by ensuring that the public perceive that cases are
decided only by reference to the evidence before the court, and the need for judges to
discharge their duties unless good reason is shown.
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):
“... a judge 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.”
The question is one of possibility (real and not remote), not probability. If there is an
appropriate apprehension of bias, then the judge must disqualify himself or herself, no
matter what case management considerations arise in the efficient and effective
determination of a proceeding.
14 [2000] HCA 63, (2000) 205 CLR 337
15 (2011) 202 FCR 439
[2019] FWCFB 3456
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In Ebner, the majority in the High Court affirmed that the application of this test
involves two steps. First, there must be identification of what it is that might lead a
judge to decide the particular questions before him or her other than on the merits.
Second, having identified the factors or circumstances that might influence a departure
from meritorious decision-making, it is “no less important” to articulate the “logical
connection” between those factors and the fear that the judge might not apply proper
judicial method (that is, merits based decision-making) in resolving the controversy on
the facts and the law (at [8]).
The mere fact that a judge has made a particular finding on a previous occasion does
not necessarily give rise to an apprehension of bias. Nevertheless, in some situations
previous findings may lead to disqualification and “what kind of findings will lead to
relevant apprehension of bias must depend upon their significance and nature”:
Gascor v Ellicott [1997] 1 VR 332 at 348 (Ormiston JA); see also at 342 (Tadgell JA
with whom Brooking JA agreed); and see Cabcharge 5 at [34].
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:
“... the lay observer might reasonably apprehend that a judge who has found a
state of affairs to exist, or who has come to a clear view about the credit of a
witness, may not be inclined to depart from that view in a subsequent case. It is
a recognition of human nature” (at [139]). (Emphasis in original.)
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 might influence the determination of the same issue in a
later judgment: see Laurie 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
[2019] FWCFB 3456
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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] 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.” 16
[23] Essentially, as should be apparent from our discussion of the grounds of appeal earlier,
the proposition advanced by the Appellant is that the manner of the Commissioner’s
questioning of the Respondent together with the erroneous factual findings might suggest that
the Commissioner was seeking to adduce by leading questions, favourable responses from the
Respondent which might suggest that the Commissioner is predisposed to the Respondent’s
case. In the result a fair-minded lay observer might reasonably apprehend that the
Commissioner might not bring an impartial mind to the resolution of the remaining
jurisdictional issue.
16 Ibid at 441-443, [8]-[23]
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[24] The Appellant also contends the Commissioner’s dealing with the Appellant’s
application for a variation to the order to produce documents further adds to this
apprehension. As a result a fair-minded lay observer might reasonably apprehend that the
Commissioner might not bring an impartial mind to the resolution of the question whether the
Appellant is a small business employer. The logical connection between the matters identified
and the feared deviation from the course of deciding the case on its merits, is the perception of
a predisposition by the Commissioner towards the Respondent’s case.
[25] The Respondent is an unrepresented litigant unfamiliar with the jurisdiction and the
Commission’s processes. It is unsurprising that a Member of the Commission will in the case
of unrepresented litigants provide some assistance in the nature of an explanation of the
processes and of the matters that such a litigant must establish in relation to an application. It
is also not inappropriate for a Member of the Commission in dealing with an application to
ask questions of witnesses and of parties appearing before the Member in order to assist the
Member in identifying the issues to be decided and the factual findings that must necessarily
be made in order to dispose of an application.
[26] The relevant questioning of the Respondent by the Commissioner about which the
Appellant complains is to be found at PN 40 to PN 53 of the transcript of the proceedings on
7 September 2018 and is set out below:
“PN40 THE COMMISSIONER: What I need you to do is just tell me how that
employment came about, how you think it was regular and systemic and then how it
changed into ongoing employment after the end of January 2018.
PN41 MS HANSSON: Okay. So when I applied for the job via Seek, I recall that
pretty much the very next day I went in for a trial and received a casual position that
night. The reason I believe it was regular and systematic was just due to the fact I was
doing more hours sometimes as a casual than I even did as a full timer; up to
sometimes 70 hours a week and no less than sort of eight fortnights at 65 hours per
fortnight. That is when after about a month I got offered a full time position that ours
a didn't take effect until 22 January, so a month after I was already offered the
position.
PN42 THE COMMISSIONER: Who came to offer you the full time position?
PN43 MS HANSSON: At the time it was actually the original venue manager,
Jarrod, but he was dismissed at the time and then I guess the next senior manager,
Hamish Laird, then continued to give me the position.
PN44 THE COMMISSIONER: All right. Does that mean Jarrod said to you, "We
want you now to work on a permanent basis?" Was he the first one to say that?
PN45 MS HANSSON: I was basically asked from the moment I set foot in The
Harbour Terrace to basically be the reliable one. I would say, yes, from the moment I
was there I was asked - it was going to be busy, it was Christmas period, school
holidays, and to expect I would have a lot of hours. I think on one, even, fortnight I
did something like 80 hours.
[2019] FWCFB 3456
11
PN46 THE COMMISSIONER: All right. Are you saying then that when you started
in November, you believed - well, let me turn this around. What did you believe about
what would be occurring with your future employment?
PN47 MS HANSSON: Well, I would assume after starting at the beginning of the
holiday period that I was going to expect regular work due to the fact that they told me
it was their busiest period.
PN48 THE COMMISSIONER: All right. Am I correct in saying that you were told
initially it was a trial period of employment?
PN49 MS HANSSON: No, just for the actual two hours I did originally.
PN50 THE COMMISSIONER: I see. That's what you meant. All right.
PN51 MS HANSSON: Yes.
PN52 THE COMMISSIONER: The period as a casual, was it held out to you that if
things went well you would be a permanent employee?" 17
[27] There is little doubt that the impugned questions are leading questions but it does not
follow that the nature of the questioning has the result that a fair-minded lay observer might
reasonably apprehend that the Commissioner might not bring an impartial mind to the
resolution of the question he is required to determine. Context is important. The Respondent
was not represented and she was attempting to respond to the jurisdictional issues raised by
the Appellant. The Commissioner was entitled to ask questions which are aimed at eliciting
information relevant to the issues he was required to determine particularly if the Respondent,
as appears to be the case, was not on the material before the Commissioner able to articulate a
relevant and comprehensive narrative. As the Commissioner noted the material was
“somewhat basic”.
[28] A Member of the Commission dealing with an unrepresented litigant has a duty to
provide a fair hearing to all parties but the Member should not act in a manner that provides
an advantage to the unrepresented litigant. The advice and assistance given to the
unrepresented litigant and any questioning of the litigant should be limited to that which is
necessary to diminish, so far as this is possible, the disadvantage. The disadvantage that an
unrepresented litigant might suffer arises from the unfamiliar and somewhat adversarial
procedure associated with many matters that come before the Commission. Redressing this
disadvantage may include eliciting relevant facts through questioning in a fair way. Further a
Member of the Commission may wish or need to ask questions of a witness in relation to
relevant matters, and that fact that the answer may tend to favour one party’s case or that of
the other does not speak to unfairness or to apprehended bias.
[29] Although the questions asked were leading, they were directed to relevant matters.
The Commissioner could not have known the answer that would be given to the question
asked. The answers in this case were not really responsive to the question, they did not
advance the Respondent’s case and could just as readily have damaged her case. For example
the answer to the question at PN52 could just as readily have been “no”; the Commissioner
17 Appeal Book at pp 40-42
[2019] FWCFB 3456
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was not to know the response when he asked the question. When the transcript of the
proceedings is reviewed as a whole and taking into account the circumstances of the
Respondent, we do not consider the questioning to have been unfair.
[30] A fair-minded lay observer would in our view understand that a professional decision
maker faced with an unrepresented litigant would provide fair assistance to the litigant and
would ask questions of the litigant designed to elicit information relevant to the decision that
will need to be made. A fair-minded lay observer will understand the context we have
described above. Against this context and taking into account the questions asked and the
manner in which they were asked, we do not consider a fair-minded lay observer might
reasonably apprehend that the Commissioner might not bring an impartial mind to the
resolution of the question he is required to determine by reason only of the questioning.
[31] As earlier noted the Appellant contends that the questioning combined with the
erroneous factual conclusions based on the questioning has the result that a fair-minded lay
observer might reasonably apprehend bias. That is that a fair-minded lay observer might
reasonably apprehend that the Commissioner is predisposed to the Respondent’s case.
Moreover, the Appellant contends that the Commissioner's willingness to make the small
business finding in favour of the Respondent without evidence would cause the fair-minded
lay observer to apprehend bias.
[32] The erroneous factual findings at found at [8] and [25] of the Jurisdictional Decision
and are as follows:
“[8] The Applicant’s statement recorded that during her period of casual employment
she had an ongoing roster every week and although there were variations in her hours
and the days in which she worked as a casual employee she had a minimum of 30
hours each week. Ms Hansson was not particularly precise about how she came to be
employed by Bronze Hospitality, either as a casual employee, or on a full time basis.
However, that which she has put forward indicates that she was engaged initially in the
pre-Christmas period when the business was very busy, and with the expectation that if
things worked out she would be offered ongoing employment at a later time. That offer
came about, likely in the last week of December, with it then taking until late January
to formally document the ongoing arrangement and convert her employment from
casual to full-time.
. . .
[25] The Respondent’s argument that a period of 7 weeks employment is incapable of
being regarded as a period of regular and systematic employment is not made out and
fails. Further, its contention that the work within that period of 7 weeks was not
regular and systematic is also not made out. The evidence of Ms Hansson was that she
was engaged to work as a casual with the prospect of being converted to full time
employment if the relationship progressed positively. The evidence of the timesheets
is that the actual work performed by Ms Hansson in the period in question was part of
a continuing relationship between the parties.”
[33] Though somewhat differently expressed both paragraphs contain the same factual
conclusion that the Respondent was engaged as a casual with the expectation or prospect that
if things worked out she would be offered ongoing employment at a later time. The Full
[2019] FWCFB 3456
13
Bench concluded that there was no evidence to support this finding and that the possibility of
ongoing permanent employment arose only later, towards the end of December 2017, not at
the beginning of the Respondent’s casual employment. 18
[34] The finding that the Appellant was not a small business employer is at [43] of the
Jurisdictional Decision but the relevant analysis of the evidence concerning the Four
Contested Employees is set out [35]-[42]. The Full Bench concluded that there was an
insufficient basis in the evidence to ground a conclusion that the Four Contested Employees
were employed on a regular and systematic basis. 19
[35] Each of the impugned findings has been corrected on appeal. The findings at [8] and
[25] of the Jurisdictional Decision are not relevant to the issue remitted to the Commissioner
for redetermination but plainly the status of the Four Contested Employees is relevant. As to
the first category of findings again context is import. The Respondent’s responses were
ambivalent and did not directly answer the Commissioner’s questions. The Commissioner
does not refer to the transcript of the evidence in support of the conclusions and so it seems
evident that he was relying on his memory of the evidence and perhaps any notes that he
made. The Commissioner was plainly mistaken as to the evidence but we do not consider that
the erroneous factual conclusion in the context of the ambivalent answer given by the
Respondent discloses a basis for a fair-minded lay observer to reasonably apprehend bias or
that the Commissioner was predisposed to the Respondent’s case. That the erroneous factual
finding was connected with the Commissioner’s questioning does not in the context we have
described alter that conclusion.
[36] As to the conclusion at [43] of the Jurisdictional Decision and the position of the Four
Contested Employees, as already noted the Full Bench concluded that there was an
insufficient basis in the evidence to ground the Commissioner’s conclusion that the Four
Contested Employees were employed on a regular and systematic basis. The finding of an
insufficiency in the evidence is a matter about which the Commissioner must be taken to be
acutely aware. Although the fair-minded lay observer might reasonably apprehend that a
decision maker who has found a state of affairs to exist may not be inclined to depart from
that view in a subsequent case, this will also depend on context. A fair-minded lay observer
would note the possibility of the evidentiary position changing between the previous
proceeding and the subsequent proceeding. Indeed this is very likely to be the case in the
proceedings before the Commissioner as the parties are likely to adduce further material. The
material sought by the order for the production of documents is a case in point.
[37] In addition just as the ordinary fair-minded lay observer 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, the same understanding is to be garnered in relation
to the Commissioner’s arbitral powers in deciding the question remitted to him by the Full
Bench. The fair-minded lay observer would recognise that a professional judge or a Member
of the Commission would be capable of departing from an earlier expressed opinion or
finding, particularly when an appellate body has pointed out that the earlier finding is not
supported by the evidence. Reading the Jurisdictional Decision as a whole we do not consider
it is accurate to suggest, as the Appellant does, that the Commissioner’s finding shows a
18 [2019] FWCFB 1099 at [40]
19 Ibid at [17] and [26]
[2019] FWCFB 3456
14
willingness to make the small business finding in favour of the Respondent without evidence.
There was some evidence, but it was insufficient to ground the finding made. A fair-minded
lay observer will also understand that a decision maker will sometimes make a mistake and
when that mistake is pointed out by an appellant body, that the decision maker will act
diligently in not repeating the mistake.
[38] For these reasons we do not accept that taken together the questioning of the
Respondent and the erroneous factual findings provide a basis for concluding that a fair-
minded lay observer might reasonably apprehend that the Commissioner might not bring an
impartial mind to the resolution of the question he is required to determine.
[39] We turn then to the issue of the order to produce. The Commissioner made an order
for the production of documents requiring the Appellant to produce the timesheets for all of
the Appellant’s employees. The Appellant applied for the orders to be varied to exclude those
employees who it does not dispute should be counted as employees for the purposes of s23 of
the Act. The Appellant contends that it is clear that the timesheets of employees not in dispute
are documents that are not relevant to any matter in issue, and accordingly, ought not to be
required to be produced. It contends that the requirement to produce documents pursuant to
the order is a reasonably onerous task for a small business and so documents should not be the
subject of an order, unless it is reasonably required for the resolution of the matters in dispute.
The Appellant contends that in the circumstances the Commissioner refusal to vary the orders
viewed in the context of the other matters raised by it may cause the objective observer to
apprehend bias.
[40] The Respondent produced a transcript from the audio recording, which we accept is
accurate, of the proceeding before the Commissioner on 6 May 2019 at which the issue of
varying the order was agitated, and which we set out below:
“Commissioner: My view on the order is to accede to Ms Hanson’s wishes. I’ve taken
the view that the material that is presently before me suffers a little bit from
uncertainty as to the precision about who is referred to as a full time employee and
who is not. I think the safest approach is for the order to refer to all employees.
Accordingly the order will be scheduled that is timesheets for all employees of Bronze
Hospitality for a period of no less than 6 months prior to 7th June 2018 and the return
date I think will be Tuesday, 14 May 2019 at 4pm Australia Eastern Standard Time.
Now, on that basis… Yes Mr Thorpe?
Mr Thorpe: Can you help me to understand why parties who are identified as full
timers and therefore are fully included are required to provide timesheets.
Commissioner: Well, you can only produce what you have, now…
Mr Thorpe: Correct, but can you understand why party who is identified as a full-
timer... why would their timesheets assist any part of this case?
Commissioner: Well, as I endeavoured to explain before, I have some uncertainty as
to who is being identified as a full timer and who is not. I think the application that is
made by Ms Hanson has apparent relevance, I have not heard from the Respondent
[2019] FWCFB 3456
15
that it amounts to oppression and on that basis I propose to grant the order in the
manner that I set out.
Mr Thorpe: Sorry Commissioner, were we to say, they are a casual and fall outside I
can understand why an order compelling us to provide timesheets to identify what
their status is is relevant. But where we say, they are full-time, the question what hours
they work or anything else is irrelevant. They are caught in the count of the number
for employees. So their timesheets are completely irrelevant and for me to now have to
go and get another 11 sets of timesheets – Ms Connellan has left. She left yesterday
and we are sorting out her final departure. But, there is no relevance to the time
worked by people who are said to be full-time. Even if there’s uncertainty, the fact
that we say they are full time means the hours they work are completely irrelevant.
They are captured as employees who get counted. The question is what employees get
counted. We say you count those employees. Therefore, their timesheets are irrelevant.
Commissioner: Alright, I take that as a submission, which doesn’t change my order. I
will be repeating myself and I say this, which is that the things I took into account
were that I was not satisfied on the material, which has been provided so far as to who
is within that count of full time and who is not. Now further, I take the view that the
timesheets document which was put forward by Ms Connellan referred to a number of
people who were then also referred to elsewhere within the Respondent’s material as
being full time. Now when I go through that fortnightly timesheet material there are at
least two of those people whose hours are somewhat beneath the threshold that one
would expect as a full time employee. On that bases (sic) I have made the order that I
made Mr Thorpe and documentation in that respect will be issued by my Chambers
tomorrow.”
[41] It seems clear to us from the transcribed exchange above that the Commissioner has
some concern about the position of some full time employees and whether employees who
might be casual employees should properly be regarded as full-time. This may affect the
number of employees to be included in the count of employees. To resolve this concern the
Commissioner has required the production of the relevant records. Given the Commissioner’s
earlier conclusion was set aside on the basis of insufficiency of evidence it is unsurprising the
Commissioner is taking a more forensic approach to the evidence he requires.
[42] We do not accept, whether viewed in isolation or in the context of the matters earlier
discussed that this matter provides a basis for concluding that a fair-minded lay observer
might reasonably apprehend that the Commissioner might not bring an impartial mind to the
resolution of the question he is required to determine.
[43] For the reasons stated the Appellant’s recusal application is dismissed.
[2019] FWCFB 3456
16
Orders
[44] We order as follows:
(1) Permission to appeal is granted.
(2) The appeal is upheld.
(3) The Decision in [2019] FWC 2911 is quashed.
(4) The application for the recusal of Commissioner Wilson in matter U2018/6613 is
dismissed.
DEPUTY PRESIDENT
Appearances:
G Douglas, lawyer for the Appellant
No appearance for the Respondent
Hearing details:
2019
Melbourne and Perth (video hearing)
17 May
Submissions:
Appellant, 13 May 2019
Respondent, no submissions filed
Printed by authority of the Commonwealth Government Printer
PR708466
VOISSINNO
