Fair Work Act 2009
s.365 - Application to deal with contraventions involving dismissal

Robert Dolevski
v
Virgin Australia Airlines Pty Ltd
(C2021/8930)

Christopher Mihailidis
v
Virgin Australia Airlines Pty Ltd
(C2021/8948)

Christopher David Douglass
v
Virgin Australia Airlines Pty Ltd
(C2021/8892)

Bianca Kristy Tannous
v
Virgin Australia Airlines Pty Ltd
(C2022/10)

Terry Atsas
v
Virgin Australia Airlines Pty Ltd
(C2022/248)

Kara Le
v
Virgin Australia Airlines Pty Ltd
(C2022/301)

Razaan Suleman
v
Virgin Australia Airlines Pty Ltd
(C2022/332)

Skye Fellows
v
Virgin Australia Airlines Pty Ltd
(C2022/363)

Captain Shane Murdock
v
Virgin Australia Airlines Pty Ltd
(C2022/1587)

General protections applications; request for recusal of member on ground or apprehended bias.

[1] The above nine matters (the Applications) have been referred to me for dealing with under the provisions of Part 3 – 1, Division 8 of the Fair Work Act 2009 (the FW Act) and were the subject of conciliation before me on 10 March 2022, conducted as a single conciliation of all matters. Two of the Applications had previously been the subject of conciliations before a Fair Work Commission (FWC) staff conciliator. 1 Each application is a general protections application made pursuant to s.365 of the FW Act, alleging contraventions involving dismissal by the applicants’ former employer, Virgin Australia Airlines Pty Ltd. The allegations pertain to the dismissal of each applicant (referred to collectively as the Applicants) for reasons which include their decision not to be vaccinated against COVID-19 or not to disclose their vaccination status or vaccination exemption status to Virgin Australia.

[2] Conciliation of each matter was unsuccessful and at the conclusion I advised the parties I was disposed to issue the certificate referred to in s.368(3)(a) to the effect that I was satisfied that all reasonable attempts to resolve the dispute (other than by arbitration) have been, or are likely to be, unsuccessful. I advised the parties that the certificates would be issued at the time I finished dealing with the files.

[3] After the conciliation I issued Directions for the filing of material to determine two extant matters; whether, as requested by the Applicants’ representative, Mr Glenn Floyd acting as an agent of the Applicants, the Commission would issue a written “opinion” as to the facts in these matters; and whether, as requested by Counsel for Virgin Australia, Mr Zielinksi, the Commission would issue in relation to some or all applications, the certificate provided for in s.368(3)(b) to the effect that after taking into account all the materials before it, that arbitration under section 369, or a general protections court application, in relation to the dispute(s) would not have a reasonable prospect of success (the Certificate Request). The request that the Commission issue an “opinion” was later amended to a request for a statement by the Commission of “material facts” (the Material Facts Request)

[4] Following the conciliation and directions issued by me for finalisation of the extant matters I disclosed to the parties that I am a member of the Virgin Australia frequent flyer program and hold a “Club” membership issued by them (the Memberships Disclosure).

[5] Subsequent correspondence between Mr Floyd and the Commission’s President, Justice Ross, led me to advise the parties that I accepted the Applicants to have made an application in that correspondence that I recuse myself from further dealing on these matters for reason of apprehended bias (the Recusal Application).

[6] This procedural decision deals with and determines the application for recusal. I have taken into account all material filed by the parties in relation to the applications. Virgin Australia expressly declined to make submissions about the Recusal Application.

[7] The parties were also afforded an opportunity to be heard about the application on Thursday, 7 April 2022. The hearing dealt not only with the Recusal Application, but submissions from the parties on the Material Facts Request and the Certificate Request, matters which are not dealt with in this decision.

[8] Mr Floyd appeared at the hearing for the Applicants as their agent, and Mr Pawel Zielinski, of Counsel appeared for the Respondent. Virgin Australia had been given permission by me from the time of the conciliation for representation by lawyers pursuant to s.596(2), with me being satisfied of the criterion within paragraph (a) to the effect that a grant of permission would enable the matter to be dealt with more efficiently, taking into account the complexity of the matter. The grant of permission was not opposed by Mr Floyd, and I was satisfied that no unfairness would flow to him or the Applicants if permission for representation by lawyers were to be granted to the Respondent.

[9] Central to consideration of a matter before the Commission is an obligation for the presiding member to ensure procedural fairness to all parties in their dealings with them. 2

[10] While applications may be made for a Member to cease dealing with a matter for reason of actual or apprehended bias, the Commission’s Fair Hearings Practice Note makes the point that a Member should not too readily agree to disqualify themselves 3 and follows decisions of the Full Bench on the subject; see for example Oram v Derby Gem Pty Ltd4 and UFU v MEFSB.5 The cases in turn follow the reasoning of the High Court in Re JRL; Ex parte CJL,6 in which Mason J observed:

“It seems that the acceptance by this Court of the test of reasonable apprehension of bias in such cases as Watson and Livesey 7 has led to an increase in the frequency of applications by litigants that judicial officers should disqualify themselves from sitting in particular cases on account of their participation in other proceedings involving one of the litigants or on account of conduct during the litigation. It needs to be said loudly and clearly that the ground of disqualification is a reasonable apprehension that the judicial officer will not decide the case impartially or without prejudice, rather than that he will decide the case adversely to one party.”8

[11] The Recusal Application is made on the basis of a claim of apprehended bias, with no claims being made of actual bias. 9

[12] An apprehension of bias must be “firmly established” in the case of an application for disqualification for suspected prejudice; for example, see R v Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group; 10 Laws v Australian Broadcasting Tribunal,11 Oram v Derby Gem Pty Ltd12 and UFU v MEFSB.13

[13] Of course, the appearance of bias to a reasonable observer is to be avoided. The High Court set out the objective test of the “fair-minded lay observer” in Johnson v Johnson. 14 It is repeated in Ebner v Official Trustee,15 and is based upon the need for public confidence in the administration of justice. In relation to the test, the observer is taken to be reasonable; and the person being observed is a professional judge whose training, tradition and oath or affirmation require discarding the irrelevant, the immaterial and the prejudicial.16

[14] The application of the objective test of the “fair-minded lay observer” is a two-step process requiring identification of relevant matters followed by connection of those matters with the case being decided. The High Court articulated the application of the principle as follows:

“The apprehension of bias principle admits of the possibility of human frailty. Its application is as diverse as human frailty. Its application requires two steps. First, it requires the identification of what it is said might lead a judge (or juror) to decide a case other than on its legal and factual merits. The second step is no less important. There must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits. The bare assertion that a judge (or juror) has an “interest” in litigation, or an interest in a party to it, will be of no assistance until the nature of the interest, and the asserted connection with the possibility of departure from impartial decision making, is articulated. Only then can the reasonableness of the asserted apprehension of bias be assessed.” 17

[15] The “fair-minded lay observer” is taken to have some knowledge of the actual circumstances of the case. 18 The hypothetical observer is not conceived of as a lawyer, but a member of the public served by the courts.19

[16] In its consideration of applications of apprehension of bias, the Commission has followed these principles, both as to the objective test contained within, and the two steps of identification of matters and logical connection (see for example UFU v MFESB, 20 Priestly v Department of Parliamentary Services;21 Re Metro Trains;22 Re: Construction, Forestry, Maritime, Mining and Energy Union).23 Application of the apprehension of bias principle to the work of the Commission and its predecessors has taken account of its statutory role and purpose; see R v Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group;24 Re Finance Sector Union of Australia and Another Ex Parte Illaton Pty Ltd.25

[17] In Ross Kennedy v Qantas Ground Services Pty Ltd 26 (Kennedy) the Full Bench considered a disclosure made by Deputy President Kovacic following the asking of a question of him by the applicant about whether he held “any current membership or affiliations with any program with Qantas Airways Limited” including, for example, “1) Qantas Airways Limited ‘Frequent Flier Program’; and 2) Qantas Airways Limited ‘Chairman’s Lounge’ facilities and services”.27 An application for recusal was made at first instance. At the hearing of an appeal on different procedural points the applicant alleged that the Deputy President’s procedural rulings were “infected with apprehended bias given the recusal application” and that disclosures of “conflicts” made by the Deputy President pointed to bias.28 The Full Bench held;

“The basis upon which the Decision is said to have been “infected with apprehended bias” has not been specified other than by reference to the alleged “conflicts” concerning the Deputy President’s disclosure of his membership of the Qantas frequent flyer program and Chairman’s Lounge. There appears to be an assumption on Mr Kennedy’s part that these are matters which would automatically disqualify the Deputy President from hearing his case and necessitate the conclusion that any decision the Deputy President has made in the matter has been affected by an apprehension of bias. The proposition that any particular interest on the part of a court or tribunal member will be automatically disqualifying was rejected by the High Court majority in Ebner v Official Trustee in Bankruptcy. The appeal grounds do not articulate any contention as to the basis upon which the reasonable observer might consider that the Deputy President’s membership of the Qantas frequent flyer program and Chairman’s Lounge (or any prior non-disclosure of such) might possibly divert him from deciding Mr Kennedy’s case on its merits. The facts are that Commission members are frequently required to travel throughout Australia, and Qantas is the dominant player in a very restricted domestic aviation market. This makes some form of association with Qantas difficult to avoid. Knowledge of these matters may reasonably be attributed to the ordinary fair-minded layperson. Without more, there cannot be an arguable case that the Decision was vitiated by an apprehension of bias.” 29

[18] The Recusal Application in these matters is founded on several bases; my disclosure was made after the conciliation held on 10 March 2022 and not before; the disclosure shows a conflict of interest or at least a pecuniary interest; and the Applicants would not have confidence I could make a fair decision in respect to either the Material Facts Request or the Certificate Request.

[19] The matters relevant to the first step in Ebner concern the disclosed information, with the Applicants arguing there is “no place for loyalty in law or lack of impartiality” and that it “would have been better to have known this information prior to the hearing”. 30

[20] The submissions as advanced by the Applicant relevant to the second step are not entirely clear, however appear to be that by either not disclosing the material before the failed conciliation conference on 10 March 2022 the conciliation conference was not conducted fairly or properly, or that when it comes to consideration of the Material Facts Request or the Certificate Request the fact of the memberships will skew against merit what is to be done about them.

[21] In respect of the conciliation, it is noted that the conference before me on 10 March 2022 was not the first conciliation in two of the matters, which were the subject of unsuccessful conciliations convened by a staff conciliator. Arising from those conciliations the conciliators noted the conferences were unsuccessful for reasons which included the two Applicants pressing for the Commission to issue an opinion and being unwilling to participate in any other process until an opinion had been issued.

[22] In addition, it should be noted that one of the applications, pertaining to Mrs Kara Le (C2022/301) was the subject of an application to the President on 21 January 2022 that he convene a Full Bench on certain matters, a request which was refused. 31

[23] The conciliation before me was notable by the complete unwillingness of the Applicants to put forward proposals for resolution, with it being maintained through their representative that they instead sought the Commission to issue an opinion on the matters they saw as being relevant to the applications. The Applicants’ representative, as well as each Applicant individually, was given an opportunity to advise the Respondent of terms upon which they were prepared to resolve their application. None did so. No conciliation in the sense of exchanging proposals for resolution and endeavouring to bring the parties together could take place. This was an auction at which no bids were placed.

[24] It follows from such circumstance that no apprehension of bias may reasonably be drawn from the Memberships Disclosure being after the conciliation held by me, with it being readily apparent to the fair-minded lay observer that the Applicants orchestrated the eventual outcome of the conciliations themselves when they declined to make settlement proposals.

[25] It also does not logically follow from the Memberships Disclosure that either the Material Facts Request or the Certificate Request will be decided against merit. The memberships do not disclose a predisposition of judgement, with nothing in the absence of a claim of actual bias to be drawn from them as to how the merits may be determined. It is also not the case that the memberships amount to a pecuniary interest that will be affected by the outcome of the matters yet to be addressed by the Commission. Instead, there is the same assumption by the Applicants as made in Kennedy and nothing more, that because of the disclosure there should be automatic disqualification, a possibility which the Full Bench explicitly eschewed.

[26] The Applicants also take no account of the limited role to be had for the Commission from this point forward. There is to be no determination by me of the final merits of the respective claims and nothing done by me from this point will draw the applications to a final conclusion. Those steps may only be done following an arbitration, if that is consented to, or following determination of the matters by a Court if the relevant application is made. It must be noted there is extreme doubt whether either application will ever be made with the Applicants having repeatedly stated to the Commission and Virgin Australia they do not seek arbitration of their matters. Even if the s.368(3)(b) certificate is issued such would not stand in the way of the commencement of Court proceedings, whereas the absence of the s.368(3)(a) certificate would. 32

[27] The second Ebner step is therefore not made out with there being no logical connection between the Memberships Disclosure and what is still required of the Commission to be done in relation to the Applications.

[28] For these reasons I decline to recuse myself from further dealing with these matters.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

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 1   Mihailidis (C2021/8948) and Atsas (C2022/248).

 2   See, for example, Viavattene v Health Care Australia [2013] FWCFB 2532, [21] – [30].

 3   Fair Hearings Practice Note, [28], < https://www.fwc.gov.au/resources/practice-notes/fair-hearings>.

 4   (2003) 134 IR 379, [109].

 5   (2005) 141 IR 438, [78].

 6   (1986) 161 CLR 342, 352 (Mason J).

 7   R v Watson; Ex parte Armstrong (1976) 136 CLR 248; Livesey v NSW. Bar Association (1983) 151 CLR 288.

 8   Ibid 352.

 9   The differences between which are discussed in Woolston v Uniting Church in Australia Property Trust (Q) T/A Blue Care Bli Bli Aged Care Facility [2015] FWC 5853; appealed, but findings not disturbed on appeal (see [2016] FWCFB 278).

 10   (1969) 122 CLR 546, 553 (Barwick CJ, McTiernan, Kitto, Taylor, Menzies, Windeyer, Owen JJ).

 11   (1990) 170 CLR 70, 100 (Gaudron and McHugh JJ).

 12   (2003) 134 IR 379, [107].

 13   (2005) 141 IR 438, [76].

 14   (2000) 201 CLR 488.

 15   (2000) 205 CLR 337, 344 (Gleeson CJ, McHugh, Gummow and Hayne JJ).

 16   (2000) 201 CLR 488, 493.

 17   (2000) 205 CLR 337, 345.

 18   (1990) 170 CLR 70, 87 – 88, per Mason CJ and Brennan J; see also 95, per Deane J, 98 (Gaudron and McHugh JJ).

 19   Charisteas v Charisteas [2021] HCA 29, [21] (Kiefel CJ, Gageler, Keane, Gordon, Gleeson JJ).

 20   (2005) 141 IR 438, [79] and [84] (Ross VP, Hamilton DP, Gay C).

 21   [2011] FWA 672, [11] (Watson VP).

 22   Metro Trains Melbourne Pty Ltd v Australian Rail, Tram and Bus Industry Union; Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia; Association of Professional Engineers, Scientists and Managers, Australia, 2013 FWC 4034, [33].

 23   [2019] FWCFB 214.

 24   (1969) 122 CLR 546.

 25   (1992) 42 IR 352.

 26   [2019] FWCFB 6094.

 27   Ibid [10].

 28   Ibid [20].

 29   Ibid [32].

 30   Email from Applicants’ representative, 11 March 2022 1:33 PM.

 31   [2022] FWC 269.

 32   Martin v Norton Rose Fulbright Australia (No 11) [2020] FCA 1641, [249] – [251].