The case stemmed from an allegation of racial discrimination against the Fair Work Commission
The Federal Court has dismissed an appeal alleging bias and conflict of interest in a recent unfair dismissal case.
In Toma v Fair Work Commission  FCA 1163, Loi Toma initiated proceedings with the Fair Work Commission (FWC), claiming he had been unfairly dismissed. His employer asserted that he had resigned and not been terminated. FWC rejected his application and his subsequent appeal.
Toma then commenced proceedings in the Federal Court, seeking judicial review of the FWC’s decision, which was dismissed. Toma complained to the Australian Human Rights Commission (AHRC), alleging that he had been the subject of racial discrimination by the FWC. Toma’s complaint was terminated because he required leave of court to bring his racial discrimination claim in the Federal Court.
Toma filed an application for leave to appeal from the orders made by the federal court judge. Some of Toma’s grounds in his application for leave to appeal include an alleged denial of procedural fairness, that the judge made an error in law, and that the evidence did not support the judgment and reasons given.
Toma asserted that the decision below was attended by bias and a “conflict of interest,” that the primary judge made an error in dealing with the termination of the AHRC complaint, and that he was denied procedural fairness.
To support his argument of apprehension of bias because of the primary judge’s associations and activities before appointment to the court, Toma asserted that the president of the FWC attended the primary judge’s swearing-in ceremony. Toma further said that the primary judge acted for the Fair Work Ombudsman when she was in practice and that she was an associate to a member of the former Australian Industrial Relations Commission early in her career.
However, the Federal Court found that Toma’s allegation concerning the judge’s association and activities before her judicial appointment was unsupported by any evidence, and some of his claims were matters of public record. Furthermore, the court said that the judge’s mere attendance at a formal public ceremony does not afford any proper basis for suggesting apprehended bias.
The court, citing case law, said, “No fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide”.” Accordingly, this aspect advanced for the grant of leave to appeal had no serious prospect of succeeding.
Toma also complained about the primary judge permitting FWC to rely on a bundle of authorities, submitting that this demonstrates bias of some kind. However, the court ruled that this aspect advanced for the grant of leave to appeal and had no prospect of succeeding. The court concluded that there was no proper foundation for the grant of leave to appeal upon the basis of apprehended or actual bias or conflict of interest.
Ultimately, the court ruled that no error of law was properly identified or shown to be arguable. As such, there was no basis for the grant of leave to appeal established, and necessarily, no issue of injustice arose.