DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Ms Loretta Woolston
v
Uniting Church in Australia Property Trust (Q) T/A Blue Care Bli Bli Aged Care Facility

(U2014/16541)

Application for recusal of FWC Member on the ground of apprehended and actual bias.

BACKGROUND

[1] This decision relates to an application by Ms Loretta Woolston for an unfair dismissal remedy (the unfair dismissal application) with respect to the termination of her employment by the Uniting Church in Australia Property Trust (Q) T/A Blue Care Bli Bli Aged Care Facility (Blue Care) and a further application made by Ms Woolston seeking that I disqualify myself from dealing with her unfair dismissal application on the grounds of bias. It is necessary to note that Ms Woolston was dismissed for alleged breaches of the Blue Care Code of Conduct and Values regarding unacceptable behaviour and conduct in the workplace and in particular for demonstrating aggressive, threatening and intimidating behaviour towards a colleague, after being given a warning about similar conduct on previous occasions.

[2] I heard Ms Woolston’s unfair dismissal application on 13 and 14 May and 21 July 2015. On the second day of the Hearing – 14 May 2015 – Ms Woolston walked out of the Hearing giving every indication that she did not intend to return. Given that the Hearing had reached the stage where Ms Woolston had concluded her evidence and Blue Care had commenced its evidentiary case, the Hearing continued and witness statements of remaining witnesses for Blue Care who had not given evidence at the point of Ms Woolston’s departure, were tendered and admitted into evidence.

[3] In the circumstances, I listed the matter for further Hearing on 21 July 2015 at 8.30 am, for the purpose of hearing final submissions, after giving the parties the option to put those submissions in writing or at a hearing. After attending at the Commission’s premises and standing in the doorway of the hearing room and declining to enter it to participate in the hearing, Ms Woolston again left the Commission premises at or about 8.41 am. At 2.15 pm on 21 July 2015 Ms Woolston sent an email to my Chambers asking to be informed if her case had been dismissed. My Associate responded to Ms Woolston advising that the Decision had been reserved at the conclusion of the Hearing that morning and would be issued in due course. At 4.17 pm on the same date, Ms Woolston sent an email to my Chambers in the following terms:

“I am formally requesting that Commissioner Ashby (sic) remove herself from any further decision making due to her enabling abusive practices by blue care, calling security twice indicating that she had formed an opinion about me and her interference with my cross-examination of witnesses that resulted in me being unable to cross-examine due to duress, showing bias between parties.”

[4] I have considered Ms Woolston’s email on the basis that it is an application seeking that I disqualify myself from further dealing with her unfair dismissal application on the grounds of both apprehended and actual bias (the bias application) and I have dealt with it as such. The bias application was forwarded to Blue Care’s legal representative as it did not appear that this had been done by Ms Woolston who has been informed on a number of occasions that she should not correspond with the Commission without providing a copy of her correspondence to Blue Care’s representative.

[5] On 11 August 2015 my Associate wrote to Ms Woolston informing her that it is usual that a Hearing is conducted in relation to an application that a Member of the Commission not deal further with a matter on the grounds of bias. Ms Woolston was informed that a hearing would be conducted on 21 August 2014 to give her an opportunity to make submissions as to why I should disqualify myself from further dealing with her unfair dismissal application and to allow Blue Care to respond. Ms Woolston advised that she wished to attend the hearing on 19 August 2015 by telephone and the hearing proceeded on that basis.

GROUNDS ON WHICH BIAS IS ASSERTED

[6] Ms Woolston’s submissions in relation to the bias application and the grounds upon which it is made can be summarised as follows. Ms Woolston states that a security guard was present on two occasions when her unfair dismissal application was heard and was present specifically for her matter and not for a “general sweep of the building”. When asked the basis of this assertion, Ms Woolston said that it was a direct conversation with her and went on to say:

“I’m not telling the person because you will fire them or make sure they never work again…The Fair Work Commission does not protect people…”. 1

[7] Ms Woolston agreed with the proposition that she was asserting that because security was present in the building on two days of her hearing that a reasonable person would form the view that I am biased against her. In the circumstances I have also assumed that Ms Woolston is contending that if I caused security to be present, then that is an indication of actual bias and prejudgement that the allegations against her are substantiated.

[8] Ms Woolston also raised the manner in which I dealt with her cross-examination of witnesses and said that this constituted interference. This submission appears to be based on a number of examples provided by Ms Woolston in relation to her cross-examination of a particular witness. The first example concerns the use that Ms Woolston wished to make of a whiteboard during cross examination. Ms Woolston states that she had pre-arranged that the whiteboard be in the hearing room and had planned her cross-examination around the whiteboard. According to Ms Woolston I “got stuck into it and decided it was not good enough” right at the point she was due to commence her cross-examination. Ms Woolston said that this was an “acute point” and constituted interference with a person who was self-represented and with a witness in her case.

[9] A further example given by Ms Woolston is that I interfered in her cross-examination of a witness when I prevented her from asking the witness why she was lying. Ms Woolston said in this regard that I was “on her like a rash” and behaved as if Ms Woolston had gone up to the witness and “punched her in the face.” 2

[10] Ms Woolston also made a number of assertions to the effect that I treated her differently from the way I treated the representative for Blue Care throughout the course of the hearing and that I allowed the representative for Blue Care to abuse her. Ms Woolston provided two examples in support of this allegation. According to Ms Woolston, at a point in the Hearing, I told her off for referring to the Blue Care representative as “him”. The second example is where I allowed the Blue Care representative to ridicule her ability and to make out that she was “raving on”. Ms Woolston states that in contrast to my treatment of her, there was no occasion when I pulled the representative of Blue Care up to tell him not to personally attack Ms Woolston.

[11] A further issue said by Ms Woolston to establish bias on my part, is the manner in which I dealt with staff of Blue Care who attended the Hearing at various times to observe proceedings. Ms Woolston points to the fact that on the first day of the Hearing the observers (who she referred to as “students”) did not remain in the Hearing when she objected to their presence, and contrasts this with the last day of the hearing when an additional staff member to the one who had been present for the first two days, was allowed to remain in the hearing room.

APPROACH TO DETERMINING BIAS APPLICATIONS

[12] As the High Court of Australia put it in Ebner v the Offical Trustee 3 “…bias whether actual or apparent, connotes the absence of impartiality.”4 A claim of actual bias requires proof that the decision maker approached the issues with a closed mind or had prejudged the matter and for reasons of either partiality in favour of a party or some form of prejudice affecting the decision, could not be swayed by the evidence in the case at hand.5 The test for apprehended bias is whether “a fair minded lay observer might reasonably apprehend that the [decision maker] may not bring an impartial mind to the question the [decision maker] is required to decide”.6

[13] Actual bias is assessed by reference to conclusions that might reasonably be drawn from evidence about the actual views and behaviour of the decision maker and requires clear and direct evidence that the decision maker was in fact biased. It has been pointed out that in the absence of an admission of guilt or a clear and public statement of bias from the decision maker, actual bias will be difficult to establish. 7 Apprehended bias is assessed objectively by reference to conclusions that may reasonably be drawn about what an observer might conclude about the possible views and behaviour of the decision maker. In relation to apprehended bias, a Court may only need to be satisfied that a fair minded and informed observer might conclude that there was a real possibility that the decision maker was not impartial.8

[14] The Decision of Justice Moynihan in Keating v Morris; Leck v Morris 9 is instructive in terms of the authorities considered and the conclusions reached. In that case, his Honour was considering an application that a Commission of Inquiry was tainted by the apprehension of bias and made findings about the conduct of the Commissioner conducting the Inquiry. Those findings included that the Commissioner questioned witnesses rather than allowing Counsel Assisting to do so in accordance with the practice direction; the Commissioner’s questions were aggressive, sarcastic and belittling; and that the Commissioner’s harsh treatment of some witnesses was in stark contrast with his treatment of other witnesses.10 His Honour observed in relation to the questions asked by the Commissioner of certain witnesses that they were not: “fairly described as an exploratory or tentative statement of issues with a view to testing their correctness or to give the witnesses an opportunity to respond to a provisional view.”11 It was also found that the Commissioner interfered in the cross-examination in a hostile way and made accusations about the motives of those instructing counsel.12

[15] On the basis of those matters, Justice Moynihan concluded in that case that:

“The circumstances established by the accumulated weight of evidence would rise, in the mind of a fair minded and informed member of the community, to a reasonable apprehension of lack of impartiality on the Commissioner’s part in dealing with the issues relating to each of the applicants.” 13

[16] His Honour also noted that while many decisions involve allegations of bias against courts, the rules also apply to investigative bodies, but that the application of the rules to such bodies differs from their application to litigation. In this regard, Justice Moynihan noted that a judge makes a decision on the basis of the evidence which the parties to the litigation have thought to be in their best interests to adduce and has no right to travel outside that evidence in an independent search for the truth. 14 His Honour observed that the test for bias “…takes into account the personality and disposition of the investigator, some may be more robust than others.”15 His Honour also observed that the difference between an inquiry and a court does not “dilute or diminish the expectation that a fair and unprejudiced mind will be applied to the resolution of any question.”16

[17] The Commission is not a court and neither is it an investigative body. However, the Commission is not bound to follow the rules of evidence and can inform itself in any way that it sees fit. The Commission also has broad powers to control its proceedings. The Commission is bound to deal with matters before it in accordance with equity, good conscience and the substantial merits of the case. The Objects of Part 3-2 of the Act state that the procedures and remedies relating to unfair dismissal are intended to ensure that a “fair go all round” is accorded to both the employer and the employee concerned. The Commission is also bound to afford parties natural justice.

[18] The rule against bias has been called one of the twin pillars of natural justice.  17 The other pillar – the hearing rule – requires that: “a decision maker, at least one exercising a public power, must ordinarily afford a person whose interests may be adversely affected by a decision an opportunity to present material information and submissions relevant to such a decision before it is made”.18 However, as Justice Kirby observed in Allesch v Maunz:19

“…it is worth emphasising that the principle just described does not require that the decision maker actually hear (or receive the submissions of) the party potentially liable to be adversely affected. Sometimes through stubbornness, confusion, misunderstanding, fear or other emotions, a party may not take advantage of the opportunity to be heard, although such opportunity is provided. Affording the opportunity is all that the law and principle require.” 20

[19] The Commission is increasingly required to deal with unrepresented parties – both employers and employees – who are very often extremely aggrieved and have a passionate belief in the righteousness of their position, notwithstanding the parameters of the legislative framework in which they seek to articulate their cases. The observation made by Justice Kirby set out above is apposite in the present case.

CONSIDERATION

The presence of security

[20] I did request that security be present at the Commission for Ms Woolston’s matter. I made the request to the State Manager on or around 11 or 12 May, and my request was acted upon shortly thereafter. I made the request orally and have no record of when I did so. The arrangements for security to be present were made by the State Manager on 12 May. In relation to the presence of security at the hearing, for reasons which will be obvious, I have treated this matter as an allegation by Ms Woolston of actual bias on my part. In particular I have considered whether I should disqualify myself because I requested that security be present in the Commission for the first and second days of the Hearing of Ms Woolston’s unfair dismissal application.

[21] I accept that this may be viewed as a clear statement that I had formed a view that Ms Woolston is aggressive or prior to Hearing her case, in circumstances where she was dismissed for allegedly engaging in aggressive behaviour directed at her work colleagues and those allegations had not been tested. I also accept that in making a decision about actual bias I am essentially judging myself.

[22] My reasons for requesting security were as follows. On perusing the file in relation to Ms Woolston’s unfair dismissal application prior to the hearing I noted that there are a significant number of notes on the file from various staff members of the Commission, stating that during telephone conversations Ms Woolston yelled at them and made allegations that she had been unfairly treated, threatened and harassed by the Commission. There are file notes documenting that Ms Woolston made statements that the Commission was “stupid” and “wasted” time. Ms Woolston had asserted that emails she sends “just go to the wind” and that she would be campaigning to take the “Fair” out of the Fair Work Commission.

[23] There are also file notes indicating that Ms Woolston stated on a number of occasions that she was under emotional stress. The file notes indicate that in their discussions with Ms Woolston Commission staff were simply trying to convey to Ms Woolston the requirement to file an outline of submissions and a witness statement or to provide her with information about how to make an application for the production of documents. The file notes also indicate that on a number of occasions Ms Woolston hung up abruptly during telephone calls to Commission staff.

[24] Ms Woolston did not comply with Directions issued by the Commission and failed to file an outline of submissions and witness statements. A non-compliance telephone Hearing was held by Commissioner Roe and the transcript of that Hearing indicates that Ms Woolston was rude during the Hearing including making statements that the proceedings were “rubbish” and despite being repeatedly told by Commissioner Roe to desist with her conduct. Ms Woolston appealed against an Order for production issued to Blue Care by Commissioner Roe after that Hearing. The appeal was dismissed.

[25] When the file was allocated to me, Ms Woolston sent emails with a hostile tone, indicated by the use of capital letters, querying the allocation and the fact that I decided to reduce the hearing days from three to two days. The Hearing was originally listed for 13, 14 and 15 May 2015. I decided to reduce the hearing days after looking at the file and deciding that a Hearing of three days duration was not warranted. I conducted a number of mentions of the matter to deal with issues that Ms Woolston had with the Orders for production made by Commissioner Roe. To deal with Ms Woolston’s issues, I looked at the transcript of the non-compliance hearing conducted by Commissioner Roe, for the purpose of informing myself, because Ms Woolston agitated her dissatisfaction with the Orders for production of documents that were made by Commissioner Roe in a manner that was incomprehensible.

[26] On 11 May 2015, Ms Woolston sent an email to my chambers with the following subject line: “And what the hell is this….when I’m not allowed to have any documentation accepted but they continue to present whatever they like.” The text of that email was as follows:

“Just to be sure everyone is on the same page this does not make up for her HR file or is it supposed to mean that she will be gracing us with her liar presence”.

[27] That statement was in relation to an email from Blue Care’s representative attaching a statement from a witness who had previously declined to make a statement and was appearing under an attendance notice. On 12 May 2015, Ms Woolston sent an email to my Chambers in the following terms:

“Due to the appeal date for commissioner roes decision has not been set I am not attending tomorrows hearing. Other considerations are the untimely/non existent replies to my requests for a room for my health needs and a white board and marker to be made available, in spite of these requests being with the commission for a reasonable amount of time. Also the deliberate slow release and applications of information by the respondent suggest they themselves are not adequately prepared. I believe I am being discriminated against and disadvantaged by both parties.”

[28] In all of the circumstances, I requested that security be provided for the Hearing of Ms Woolston’s application. Security was requested to patrol the entire floor on which the Commission is located and the guard did not enter the hearing room at any time. My decision to request security was fortified by Ms Woolston’s bizarre and aggressive behaviour throughout the hearing. On the first day of the hearing, when requested to confirm her appearance for the record, Ms Woolston picked up what turned out to be mint that had been left on the bar table and said: “I just found some drugs. What’s this for? Is this to sedate me?” 21. Ms Woolston went on to demand that all persons in the hearing room hand in their mobile telephones so that they could not collude. A few minutes into the start of the hearing on 13 May 2015, when I was requesting that Ms Woolston desist from interrupting a submission that was being made by Blue Care’s representative, Ms Woolston and I had the following exchange in relation to the presence of a security guard outside the hearing room in the public areas of the Commission:

“MS WOOLSTON:  Shall we call the security guard now?  I am aware of him.
THE DEPUTY PRESIDENT:  Ms Woolston, there’s nothing unusual about a security guard being in the premises, and no-one needs to fear any presence of a security guard provided they’re behaving appropriately.

MS WOOLSTON:  I don’t.  We were shaking hands and talking.

THE DEPUTY PRESIDENT:  That’s good.  I’m glad to hear it.  Okay.  Thanks, Mr Longwill.” 22

[29] I can only wonder at what Ms Woolston and the security guard discussed. It was later reported to me that Ms Woolston was in the conference room provided to her for her “health needs” with the security guard, having a conversation. Given Ms Woolston’s submission about the security guard’s presence, I determined to retain the presence of security on the second day of the hearing. I did not request that a security guard be present on 21 July.

[30] In light of the circumstances described above, a conclusion can reasonably be drawn that I did not have any pre-conceived view about validity of the reason for Ms Woolston’s dismissal and that I simply took reasonable precautions to protect myself and the staff of the Commission from an Applicant who had displayed aggression towards Commission staff about the way in which the Commission had dealt with her case prior to the Hearing and made an apparently inflammatory statement about a witness who was to give evidence in the hearing.

[31] I am also of the view that a fair minded lay observer would not apprehend, that my request for a security guard to be in the vicinity of the hearing room in which Ms Woolston’s unfair dismissal application was heard, to provide security in relation to that application means, that I would not bring an impartial mind to the resolution of her application for an unfair dismissal remedy. A fair minded lay observer would see nothing unusual about security personnel being located in premises in which a Court or Tribunal holds hearings.

Allegation of interference in cross examination of witnesses

[32] My ruling during the hearing about the use of a whiteboard arose in the following circumstances. Prior to the commencement of the Hearing, Ms Woolston made at least two requests for a whiteboard and markers to be provided for her use in the hearing room. Ms Woolston did not indicate why she needed a whiteboard but her request was granted. At the point Ms Woolston began her cross-examination of Ms Cornwill (a witness for Blue Care and the person with whom Ms Woolston is alleged to have had an altercation that immediately preceded her dismissal) it became apparent that Ms Woolston wanted Ms Cornwill to draw a diagram on the whiteboard, probably to illustrate the layout and size of the room in which the alleged incident of 2 November 2014 occurred, and their respective positions in that room.

[33] When the use that Ms Woolston proposed to make of the whiteboard became apparent, I attempted to explain the difficulties associated with Ms Woolston’s approach. In this regard I pointed out to Ms Woolston that the whiteboard provided was not an electronic whiteboard and no copy could be made of any diagram that Ms Cornwill might have drawn. Instead of the whiteboard, I proposed that Ms Cornwill be provided with a piece of A3 paper upon which she could draw a diagram. This would enable the diagram to be shown to Ms Woolston and Blue Care’s representative and then tendered into evidence and retained.

[34] Ms Woolston objected to this approach and argued that a photograph could be taken of the whiteboard with either an iPhone or an iPad and that I was “messing with her defence” 23. I indicated that I had neither device with me in the Hearing and that I had concerns about the quality and resolution of such an image in any event. Ms Woolston responded to this proposition by stating:

“Well, you’re the decision maker. So I’ve put my objection. Now it’s up to you. So nothing I can do about your decision making.” 24

[35] I also observed Ms Cornwill’s apparent distress while in the witness box, at being in close proximity to Ms Woolston in a relatively small hearing room and in my view it would have been inappropriate to require Ms Cornwill to leave the witness box and stand in front of a whiteboard in even closer proximity to Ms Woolston to draw a diagram while being cross-examined. Ms Cornwill was present pursuant to an attendance notice and was obviously reluctant to attend.

[36] Once the issue of the whiteboard was resolved, Ms Woolston proceeded to open her cross-examination of Ms Cornwill with the following:

“I’d just like to ask how you are feeling…Okay. Have you had time to consider your registration and the potential of what’s going to happen to you?” 25

[37] When Blue Care’s representative objected to this statement on the basis that it was a threat, 26 I directed Ms Woolston to ask questions about Ms Cornwill’s evidence in this case. Ms Woolston then asked Ms Cornwill:

“Well, why did you lie, Louise?” 27

[38] I then endeavoured to assist Ms Woolston to formulate her questions and suggested that she take Ms Cornwill to the aspect of her statement that was asserted to be untrue and put to Ms Cornwill what Ms Woolston said was the true position, Ms Woolston responded by asserting that I was advocating for Blue Care and interfering in her case. Ms Woolston then stated that:

“Gee, if I can’t ask her about being a liar, I’ve run out of questions.”

[39] Ms Woolston and I then had the following exchange:

“MS WOOLSTON:  For the recording, I've completed my questions.  Thank you.

THE DEPUTY PRESIDENT:  Last opportunity - if you wish to challenge the credit of this witness, you are - and don't yawn in my face either - you are required to put to her precisely what in her statement you say is untrue and the alternative - - -

MS WOOLSTON:  You have told me that what I have questioned her on is not good enough for this Commission.

THE DEPUTY PRESIDENT:  It's not good enough to just - - -

MS WOOLSTON:  I have now assessed - excuse me - - -

THE DEPUTY PRESIDENT:  No, I will not excuse you.

MS WOOLSTON:  I have now made an assessment.

THE DEPUTY PRESIDENT:  Be quiet while I tell you.

MS WOOLSTON:  All right.  I'm thank you to be quiet.

THE DEPUTY PRESIDENT:  Good.  Be quiet.  The only way that you can say to a witness, "Your statement is not true," is to point to exactly the statement that you say is not true in her witness statement and put to her the alternative.  So, "Ms Cornwill, I put it to you that what you said in paragraph X is not right, and this is what in fact happened.  I put it to you that I did not do what you've asserted in paragraph 9 and, in fact, I did this."  That's the appropriate way to do it.

I'm now giving you a final opportunity to do that.  If you choose not to take that opportunity, I will allow Mr Longwill to re-examine the witness and then I will excuse her.  And if you sit there and do nothing and say nothing when I've given you the opportunity to question the witness, I will have no option but to take everything she said as the truth and as unchallenged by you.  Just so you understand.

MS WOOLSTON:  For the record, under duress, I have no questions for this witness.

THE DEPUTY PRESIDENT:  There is no duress.  I am giving you an opportunity to ask questions.  If you choose not to take it, that is a matter for you, Ms Woolston.  Would you like a few minutes to frame some questions?

MS WOOLSTON:  For the record again I will state under duress I have no questions for this witness.” 28

[40] There was no re-examination of Ms Cornwill and she was excused and started to leave the Hearing. As Ms Cornwill departed Ms Woolston directed a comment at Ms Cornwill and I informed Ms Woolston that she should not say anything to Ms Cornwill as she had lost the opportunity to do so.

[41] I do not accept that the way in which I dealt with this situation could be the basis for a conclusion of bias. I also do not accept that the manner in which I dealt with these issues could reasonably be apprehended, by a fair minded and lay observer, as establishing bias. If Ms Woolston wanted Ms Cornwill to draw a diagram for the purposes of tendering it into evidence, then I gave her an opportunity to do this. On any view of Ms Woolston’s cross-examination of Ms Cornwill, Ms Woolston’s opening comment about Ms Cornwill’s status as a Registered Nurse was at best inappropriate and at worst threatening. The objection to the comment was entirely reasonable and appropriate, as was my decision to uphold that objection. Further, the questions Ms Woolston asked of Ms Cornwill were irrelevant to the issues in dispute or were submissions. Ms Woolston resisted all attempts to assist with reformulating her questions, despite being given an opportunity to do so.

Allegation of differential treatment of Ms Woolston during the hearing of her unfair dismissal application

[42] An allegation of differential treatment requires the party making it to establish that there is a valid and consistent basis for comparison – in short that apples are being compared with apples. In the context of the present case, to compare the conduct of Ms Woolston with that of Blue Care’s representative Mr Longwill, would involve a comparison of apples with oranges. Ms Woolston’s conduct was rude, aggressive, sarcastic and disruptive. This is so, even if allowances are made for the fact that Ms Woolston was self-represented and confronted with the difficulties that are faced by self-represented parties in litigation.

[43] Ms Woolston’s needs were accommodated as far as possible. Directions were waived to allow Ms Woolston to rely on her Form F2 Unfair dismissal application in lieu of filing and serving witness statements and an outline of submissions. A conference room was provided for Ms Woolston’s use for both the conciliation and the Hearing of her application. Ms Woolston was offered frequent breaks during the hearing. I was required to attempt to dissuade Ms Woolston from walking out of the Hearing when she stated her intention to do so on a number of occasions prior to her actually carrying out this action.

[44] Mr Longwill was not rude or abusive to Ms Woolston. Contrary to Ms Woolston’s submission, the fact that Mr Longwill prefaced his cross-examination with the statement that he wanted to confirm that his role was to test Ms Woolston’s evidence, does not constitute an acceptance by Mr Longwill that his questioning of Ms Woolston was going to be rude or abusive. Ms Woolston asserts that Mr Longwill ridiculed her and said that she was raving. The relevant exchange appears to be around PN2218 of the transcript during Ms Woolston’s cross-examination of Ms Leishman, where the following appears:

“MS WOOLSTON: Your Honour, for a very experienced HR person, you can't tell a lot, can you?  Can you, Karrin?  How long did you train for your answers here?---All I can provide is my recollection of the process that we went through at the time.

With your recollection, I just cannot understand how you an even do your job on a daily basis.  It's very poor.  And unfortunately, I was subjected to it.  I think I have raised very deep concerns about the way you have done your investigation, reasonable enough, along with the beautiful piece of federal documentation to totally throw your stuff out the window, because it doesn't seem that you could have given me a fair anything.  You ignored my request all the time.

MR LONGWILL:  Your Honour, perhaps these matters could be left for submissions.  There's no question.

MS WOOLSTON:  How do you know I wasn't building up to one?

MR LONGWILL:  Well, you haven't for the last five minutes.

MS WOOLSTON:  I didn't know we had a time on the truth.  Sorry.

THE DEPUTY PRESIDENT:  Ms Woolston, perhaps - - -

MS WOOLSTON:  That's fine.  Let's go.

THE DEPUTY PRESIDENT:  - - -if you break the questions down.

MS WOOLSTON:  Thanks, Karrin.  Off the hook, I'm closing up now.

THE DEPUTY PRESIDENT:  Ms Woolston, all you have to do - - -

MS WOOLSTON:  No, no.  It's all documented.

THE DEPUTY PRESIDENT:  - - - is put them into one sentence propositions.  Are you leaving?

MS WOOLSTON:  Yes.  After rot like that, you bet.

THE DEPUTY PRESIDENT:  Ms Woolston - - -

MS WOOLSTON:  Congratulations, Tim.  You just won your case.

THE DEPUTY PRESIDENT:  If you walk out, Ms Woolston, you will have forfeited the case.

MS WOOLSTON:  I know what it means.  I'm sick to death of this.  I'm sick of you and him carrying on.

THE DEPUTY PRESIDENT:  How about we have a break for half an hour.

MS WOOLSTON:  How about you go sit in your chambers and do what you do and I will go.

THE DEPUTY PRESIDENT:  Ms Woolston, that would be - - -

MS WOOLSTON:  We will not be finding any truth here today with you two carrying on like you do.

THE DEPUTY PRESIDENT:  Ms Woolston, you're actually making some points.

MS WOOLSTON:  I know I am.

THE DEPUTY PRESIDENT:  Come back and finish putting your case.  I'm warning you, if you walk out, I'll have to dismiss it.  Okay, Ms Woolston has walked out, slamming the door very hard into the wall, probably putting a dent in it.  Let's stand the matter down for half an hour and see if she comes back and if she doesn't, then I will deal with whatever application you want to make, Mr Longwill.” 29

[45] This exchange immediately preceded Ms Woolston’s departure from the hearing on 14 May 2014.

[46] It is clear on the face of the transcript that Mr Longwill was not rude to Ms Woolston but made a legitimate objection. It is also clear from the transcript that Mr Longwill had been subjected to a significant number of sarcastic and disruptive comments from Ms Woolston throughout the whole course of the Hearing. Mr Longwill could equally argue that I did not intervene at those points and that I should have done so.

[47] I have considered the transcript in full, and do not accept that a fair minded, informed observer, could reasonably consider that I failed to intervene to protect Ms Woolston from allegedly abusive behaviour directed towards her by Mr Longwill, or that any alleged action or inaction on my part could reasonably lead to a conclusion that I treated Ms Woolston differently to Mr Longwill.

[48] There was no abusive behaviour on the part of Mr Longwill and I did intervene in order to attempt to explain to Ms Woolston the appropriate way in which to frame her questions. That Ms Woolston reacted by shutting down her case and leaving the Hearing is an example of her unwillingness to avail herself of reasonable opportunities to be heard and to advance her case. At the first sign of any disagreement with a demand or proposition put by her, Ms Woolston reacted with hostility, aggression and threats to walk out or shut down a discussion. When this conduct failed to sway the other participants, Ms Woolston walked out.

[49] The other incident where Ms Woolston alleges I interrupted her and “told her off” for referring to Mr Longwill as “him” is recorded at PN1606 to PN1624 of the Transcript of proceedings of 13 May 2015. In that exchange, I am attempting to clarify with Ms Woolston whether her Form F2 referred to a document that she was attempting to put to a witness for Blue Care in cross-examination. When I asked Ms Woolston for assistance in clarifying the matter she informed me that I am the expert and that she would not dare to assist.

[50] I do not accept that these instances or any other exchanges between me and the parties could lead a fair minded and informed observe to reasonably consider that there was differential treatment of the representatives. My treatment of the representatives was based entirely on their conduct. Ms Woolston’s conduct was rude, sarcastic aggressive and hostile, and Mr Longwill’s was not. Ms Woolston is responsible for her conduct and the consequences of it. That conduct is not a basis upon which to assert that I am biased. To find otherwise would be to provide Applicants who behave inappropriately in Hearings an opportunity to relitigate their cases.

Allegations about attendance of Blue Care Staff at Hearings

[51] Blue Care was represented in the Hearing by Mr Longwill. Ms Peita Town, Blue Care’s Employee Relations Manager, was also present for the purposes of instructing Mr Longwill, and in accordance with usual processes in such cases, gave her evidence first. On the first day of the Hearing there were a number of members of Blue Care’s Human Resource Management team in the hearing room for the purpose of observing the Hearing. Ms Woolston took issue with the attendance of those persons and questioned why they were present. I endeavoured to explain to Ms Woolston that it is perfectly legitimate for a large employer to have Human Resource Management staff present at a Hearing in the Commission to observe the process and to gain exposure to, and experience of, how such Hearings are conducted. Despite my attempts to explain the reason for the attendance of those persons, and that the Hearing was not otherwise closed, Ms Woolston maintained that their presence intimidated her. Blue Care agreed that those persons would leave the hearing and they did so. It is those persons that Ms Woolston refers to as “the students” in her bias application.

[52] On 21 July 2015, Ms Woolston attended at the Commission’s premises for a Hearing to make her final submissions, but declined to enter the hearing room or participate in the Hearing on the basis that Blue Care had in attendance an Industrial Relations Advisor in addition to Ms Town. Ms Woolston stood in the doorway of the hearing room and asked whether I was removing the Industrial Relations Advisor. I was informed by Mr Longwill for Blue Care that upon resolution of Ms Woolston’s unfair dismissal application there are other outstanding matters between Blue Care and Ms Woolston, and the Industrial Relations Advisor in attendance at the hearing would be dealing with those matters. When I advised Ms Woolston that I would not remove the Industrial Relations Advisor from the Hearing, Ms Woolston informed me that she would let the Productivity Commission know and again left the Hearing.

[53] Ms Woolston asserts in her bias application that the way in which I dealt with the “students” on the first and last day of her hearing was inconsistent and a further indication of bias on my part. In my view there is no reasonable basis for such a conclusion and the manner in which I dealt with the matter of additional persons attending the Hearing was entirely unexceptional. A true reflection of what occurred at the Hearing on 13 May 2015 was that Blue Care did not press for their additional observers to remain in the Hearing. I made no ruling on the first occasion with which to be inconsistent.

CONCLUSIONS

[54] I decline to remove myself from further dealing with Ms Woolston’s application. There is in my view, no reasonable basis for a conclusion that I had a closed mind or had prejudged Ms Woolston’s matter, or that I could not have been swayed by the evidence that Ms Woolston may have put before me. I am also of the view that the test for apprehended bias has not been made out and that it cannot be said that a fair minded lay observer might reasonably apprehend that I might not bring an impartial mind to the question of whether Ms Woolston was unfairly dismissed.

[55] A fair minded lay observer would have observed Ms Woolston conducting herself in an entirely inappropriate manner and failing to take the opportunities given to her to present her case. Ms Woolston did not raise the allegation of bias until she had twice removed herself from Hearings and refused to participate in the process she had invoked to challenge the fairness of her dismissal. At that point Blue Care had been put to the cost, time and effort of mounting a defence to her application and bringing its witnesses to the Hearing to respond to it. To grant Ms Woolston’s application that I disqualify myself from dealing further with her unfair dismissal application would result in a further first instance Hearing before the Commission. Given Ms Woolston’s conduct to date, it is doubtful that this would resolve her issues and in my view it would be an exercise in futility.

[56] A Decision determining Ms Woolston’s unfair dismissal application will issue with this Decision. Ms Woolston’s application that I disqualify myself from determining her unfair dismissal application is refused.

DEPUTY PRESIDENT

 1   Transcript of proceedings 19 August 2015 PN2307-PN2309.

 2   Transcript of proceedings 19 August 2015 PN2357.

 3   (2000) 205 CLR 337.

 4   Ibid at 348.

 5   Re Medicaments and Related Classes of Goods (No 2) [2000] EWCA Civ 350; [2001] 1 WLR 700 at [37] – [39].

 6   Ebner v Official Trustee in Bankruptcy (2001) 205 CLR 337 at 344.

 7   Groves M, The Rule Against Bias [2009] Monash University Law Research Series UMonashLRS 10, p. 4-5 citing Sun v Minister for Immigration and Ethic Affairs [1997] FCA 1488; (1997) 151 ALR 505 at 551-552.

 8   Ibid at p. 4-5.

 9   [2005] QSC 243.

 10   Ibid at [69] and [107].

 11   Ibid at [92].

 12   Ibid at [88].

 13   Ibid at [159].

 14   Ibid at [34] quoting Mahon v Air New Zealand [1984] 1 AC 808.

 15   Ibid at [44] citing Council of the Municipality of Burwood v Harvey (1995) LGERA 389, 395.

 16   Ibid at [46] citing Carruthers v Connolly [1998] 1 Qd R 339,371.

 17   Groves M, The Rule Against Bias, op cit at 1.

 18   Allesch v Maunz (2000) 203 CLR 172 at 184, per Kirby J.

 19   Ibid

 20   Ibid at 185, citing Vestry of St James and St John, Clerkenwell v Feary (1890) 24 QBD 703 at 709 per Lord Coleridge CJ; Sydney Corporation v Harris (1912) 14 CLR 1 at 15.

 21   Transcript of proceedings 13 May 2015 PN2.

 22   PN116 to PN119.

 23   PN1734.

 24   Transcript of proceedings 14 May 2015 PN1736.

 25   Transcript of proceedings 14 May 2015 PN1757.

 26   PN1758.

 27   PN1776.

 28   PN1811 to PN1824.

 29   PN2218 to PN2242.

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