CASE PROCEDURES – apprehension of bias – ss.394, 589 Fair Work Act 2009 – applicant’s unfair dismissal application made on 23 February 2016 – hearing dates on application’s merits rescheduled on multiple occasions – on 18 August 2016 respondent applied to have current hearing dates vacated and relisted on dates determined by the Commission in consultation with the parties due to witness availability – on 26 August 2016 Commission gave parties two options for hearing dates – Commission had ex-parte conversations with both parties on the setting of hearing dates – parties could not agree – applicant’s representative unavailable on one set of dates – respondents’ senior counsel unavailable on the other set of dates – Commission determined the hearing would be held when the respondent’s senior counsel was unavailable as all 7 witnesses could attend those dates and only 6 witnesses could attend the other set of dates – subsequently respondent applied for the Commissioner to recuse himself from the matter – submitted Commissioner has made decisions and contacted and discussed the matter with parties on an ex-parte basis which demonstrated apprehended bias – applicant submitted they had no concerns about bias, apprehended or otherwise – Commissioner used the reasonable lay observer test from Johnson v Johnson – held that given the circumstances, a reasonable lay observer would not apprehend that the Commissioner was biased – decision made was procedural and administrative to break the impasse between parties and decide when matter would be heard – no basis to conclude decision made in interlocutory proceedings against the respondent’s preferred hearing dates would repeat itself when determining the merits of the case – Commissioner to proceed and hear and determine the applicant’s application. Applicant v Respondent
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