Commissioner Refuses To Withdraw From A Case When Accused Of Bias

The National Retail Association (NRA) who was representing an employer in an unfair dismissal case before Fair Work Australia (Daniel Crowden v Clive Peeters Limited) asked that Commissioner Asbury …recuse yourself from any matters involving the NRA on the basis of apprehended bias.

The NRA claimed that Commissioner Asbury should not deal with NRA matters because of two previous decisions (in relation to NRA matters) made by a Full Bench, which included the Commissioner, that were overturned on appeal. It was the NRAs contention that the Commissioner’s involvement in these previous matters might lead a fair minded lay observer to apprehend that the Commissioner might not bring an impartial and unprejudiced mind to the resolution of matters involving the NRA.

Commissioner Asbury stated that Essentially the NRA’s submission requires acceptance of the proposition that a finding of apprehended bias against a member of a tribunal in any one case means that finding operates forever in all future proceedings; and that if an appeal is successful against the decision of a member of a tribunal then that member is disqualified from dealing with all future matters involving [the party, or representative who made the appeal].

The Commissioner pointed out that appeals are a fact of life for judicial officers and that some are upheld whilst others are not, and refused to be disqualified from the case.