CASE PROCEDURES – apprehension of bias – s.394 Fair Work Act 2009 – application for relief from unfair dismissal – respondent objected on basis applicant had not been employed for minimum employment period, and applicant filed application three days before dismissal took effect – applicant subsequently filed a second application which was out of time – both applications listed for mention – respondent withdrew its objection that applicant had not served minimum employment period – respondent’s lawyer sought that the Commissioner rescue himself from determining the second objection on the basis of apprehended bias given a comment made during the mention – respondent contended that an apprehension of bias arose because the Commission had cautioned respondent in respect of costs if the jurisdictional objection regarding the expiry of time and the waiver of irregularity was pursued – respondent claimed the caution as to costs indicated that the Commission may have pre-judged the merit of the objection before having the benefit of submissions – no audio recording of exact words used by the Commission and parties exists – Commission acknowledged the issue of costs was raised but did not recall words used – ResMed Ltd v AMWU considered – reasonable bystander test – unrealistic to conclude that a fair minded lay observer would come to the view that comments made by the Commission at the mention would lead to a real possibility the Commission would not bring an impartial mind to resolution of respondent’s second objection once both applicant and respondent set out their respective cases – reasonable apprehension must be ‘firmly established’ – any view or comment expressed by the Commission in the mention would have no possible impact on substantive proceedings or any costs applications – Commission did not rescue himself from dealing with the matter. Gee v Tasmania Ports Corporation P/L t/a Tasports
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