Adrianna Permus v Avid Holding Pty Ltd as Trustee for Avid Holding Unit Trust [2026] FWC 1612

1 Fair Work Act 2009 s.394 - Application for unfair dismissal remedy Adrianna Permus v Avid Holding Pty Ltd as Trustee for Avid Holding Unit Trust (U2025/17411) COMMISSIONER SLOAN SYDNEY, 5 MAY 2026 Application for an unfair dismissal remedy – recusal application – alleged apprehended bias – alleged breach of Member Code of Conduct – recusal application dismissed Introduction [1] Adrianna Permus is the applicant in unfair dismissal proceedings which she commenced against her former employer, Avid Holding Pty Ltd as Trustee for Avid Holding Unit Trust. The matter was allocated to me. [2] I conducted a directions hearing on 4 March 2026. Following a discussion with the parties at that directions hearing, the matter was adjourned until the following day for the purposes of me conducting a Member-assisted conciliation (MAC). The matter failed to resolve at the MAC. On 6 March 2026, and based on a discussion I had with the parties at the conclusion of the MAC, I made directions to advance the matter to a hearing. [3] On 24 March 2026, Ms Permus filed a document titled “Disqualification of Member”. The effect of the document was to request that I recuse myself from the proceedings on the ground of apprehended bias. Ms Permus alleged that my conduct during the directions hearing and MAC was in breach of sections 581, 582 and 620 of the Fair Work Act 2009 (Act) and of clauses 4.1.3 (Apprehended bias) and 4.3.2 (Conduct in proceedings) of the Member Code of Conduct. [4] On 30 March 2026, I arranged for an email to be sent to the parties (Directions Email), which stated in part: “The Commissioner must determine whether he should recuse himself from the matter. To that end, he makes the following directions: 1. Ms Permus is to file and serve any additional evidence and submissions on which she intends to rely in respect of her recusal application by 4.00pm on Thursday, 2 April 2026. [2026] FWC 1612 [Note: An appeal pursuant to s.604 (C2026/7149) was lodged against this decision - refer to Full Bench decision dated 16 July 2026 [[2026] FWCFB175] for result of appeal.] DECISION -- 1 of 16 -- [2026] FWC 1612 2 2. Avid Holding Pty Ltd is to file and serve any evidence and submissions that it wishes to rely on or make in respect of the recusal application by 4.00pm on Thursday, 9 April 2026. For the avoidance of doubt, these directions: A. do not require a party to file any, or any additional, evidence and submissions in relation to the recusal application. If no additional material is received, the Commissioner will determine the recusal application on the basis of the submissions attached to Ms Permus’s email of 24 March 2026; and B. do not affect the directions made on 6 March 2026, which remain in force.” (Bold in original) [5] On 2 April 2026, my Chambers received an email from Ms Permus attaching a document titled “Amended Disqualification of Member” (Recusal Application). The effect of the amendment was to add contentions of partiality in respect of the Directions Email. Also attached to the email was a statement of Robert Permus, who was Ms Permus’s support person during the directions hearing on 4 March 2026 and at the MAC the following day. [6] Avid Holding did not file any evidence or submissions in respect of the Recusal Application, and did not seek to be heard on it. Relevant principles [7] The principles to apply in determining applications such as the Recusal Application are well-settled. The test to apply, as set out in Ebner v Official Trustee in Bankruptcy1, is whether “a 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”. The correct application of that test requires “(1) identification of the factor which it is said might lead a judge to resolve the question other than on its legal and factual merits; (2) articulation of the logical connection between that factor and the apprehended deviation from deciding that question on its merits; and (3) assessment of the reasonableness of that apprehension from the perspective of a fair-minded lay observer”.2 [8] In Andrew Gilogley v Youfoodz Pty Ltd and Ors3 the Full Bench of the Commission observed: “[30] It is not in dispute that the principles set out in the High Court decision of Ebner concerning apprehended bias are applicable in this case. The test for apprehended bias is whether a fair-minded and appropriately informed lay observer might reasonably apprehend that the decision maker might not bring a fair, impartial and independent mind to the determination of the matter on its merits. The Full Court of the Federal Court 1 (2000) 205 CLR 337 at [38] 2 QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2023) 279 CLR 148 at [38], quoted with approval in SunshineLoans Pty Ltd v Australian Securities and Investments Commission [2026] HCA 8 at [1] (Gageler CJ and Gleeson J), [60] (Gordon J), [130] (Jagot J) and [151] (Beech-Jones J) 3 [2025] FWCFB 290 -- 2 of 16 -- [2026] FWC 1612 3 in ALA15 v Minister for Immigration and Border Protection [2016] FCAFC 30 explained that at least the following two steps are involved in a case involving an allegation of apprehended bias: Other relevant principles are: (a) at least the following two steps are involved in a case involving an allegation of apprehended bias: (i) there must be an identification of what it has said might lead a judge to decide a case other than on its legal and factual merits; and (ii) there must be an articulation of the logical connection between the matter and the feared deviation from a course of deciding a case on its merits (Ebner at [8] per Gleeson CJ, McHugh, Gummow and Hayne JJ); (b) an allegation of bias against a judge on the basis of prejudgment is a serious matter not the least because it carries with it the suggestion that the judge has failed to honour his or her judicial oath as such might be questioned by the fair-minded observer. As is also the case where such an allegation is made against an administrative officer, the allegation must be ‘distinctly made and clearly proved’ (Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507 (Jia Legeng) at [69] per Gleeson CJ and Gummow J); and (c) as noted above, the test assumes that the hypothetical fair-minded lay observer is to be attributed with appropriate knowledge of relevant matters so as to be in a position to make a reasonably informed assessment of the likelihood of apprehended bias (see, for example, Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488 at [13] per Gleeson CJ, Gaudron, McHugh and Gummow and Hayne JJ and at [53] per Kirby J; British American Tobacco at [47] [48] per French CJ and at [144] per Heydon, Kiefel and Bell JJ and Isbester v Knox City Council [2015] HCA 20 at [23] per Kiefel, Bell, Keane and Nettle JJ and at [57] per Gageler J). [31] In Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507, Hayne J (with whom Gleeson CJ and Gummow J agreed) explained, in summary, that: (a) the rules in relation to bias through prejudgment are different in administrative decision making as compared to judicial decision-making: at [180]; (b) specialised administrative tribunals can be expected to bring to the task of decision-making ‘a great deal of information and ideas which have been accumulated or formed in the course of deciding other applications’. Such a decision-maker could be expected to build up ‘expertise’ in matters such as -- 3 of 16 -- [2026] FWC 1612 4 country information; and ‘[o]ften information of that kind is critical in deciding the fate of an individual’s application, but it is not suggested that to take it into account amounts to a want of procedural fairness by reason of prejudgment’: at [180]; (c) saying that a decision-maker has prejudged or will prejudge an issue, or that there is a real likelihood that a reasonable observer might reach that conclusion, involves the following contentions in respect of the decision- maker: (i) they have an opinion on the relevant aspect of a matter in issue; (ii) they will apply that opinion to the matter in the case; and they ‘will do so without giving the matter fresh consideration in the light of whatever may be the facts and arguments relevant to the particular case. Most importantly, there is the assumption that the question which is said to have been prejudged is one which should be considered afresh in relation to the particular case’: at [185]; and (iii) having or expressing preconceived opinions does not constitute bias or a reasonable apprehension of bias, by pre-judgment, for it does not follow that the decision maker will disregard the evidence: at [186]. [32] Disqualification on the ground of apprehended bias must be ‘firmly established’. A finding of apprehended bias is not to be reached lightly. As Mason J emphasised in Re JRL; Ex parte CJL (1986) 161 CLR 342: … Although it is important that justice must be seen to be done, it is equally important that judicial officers discharge their duty to sit and do not, by acceding too readily to suggestions of appearance of bias, encourage parties to believe that by seeking the disqualification of a judge, they will have their case tried by someone thought to be more likely to decide the case in their favour.” (Footnotes omitted) [9] Further to Full Bench’s observations at [32] in the above passage, I observe that in Ebner it was said that “if the mere making of an insubstantial objection were sufficient to lead a judge to decline to hear or decide a case, the system would soon reach a stage where, for practical purposes, individual parties could influence the composition of the bench. That would be intolerable.”4 [10] The Full Bench’s reference at [30] to a “fair-minded and appropriately informed lay observer” reflects two considerations. First, the fair-minded observer is a member of “the public served by the courts” rather than a member of the judiciary or the legal profession.5 Second, that they are appropriately informed. They are taken to understand that the decision maker is a 4 (2000) 205 CLR 337 at [20] 5 Charisteas v Charisteas (2021) 273 CLR 289 at 299-300, [2021] HCA 29 at [21] -- 4 of 16 -- [2026] FWC 1612 5 person “whose training, tradition and oath or affirmation require [the decision maker] to discard the irrelevant, the immaterial and the prejudicial”.6 The fair-minded observer is also taken to have knowledge of the material facts of the case, including the material facts understood in the broader context of the proceedings where appropriate.7 This context includes the fact that the Commission is a specialist tribunal established to deal with matters in a practical, expeditious and effective manner and that the Commission is required to perform its functions in a manner that is fair and just and is quick, informal and avoids unnecessary technicalities.8 [11] Deciding whether a decision maker might not bring an impartial mind to the resolution of a question that has not been determined requires no prediction about how they will in fact approach the matter. The question is one of possibility (real and not remote), not probability.9 [12] Having regard to the basis of the Recusal Application, it is pertinent to reproduce the following principles recited by the Full Bench in Amec Foster Wheeler Australia Pty Ltd v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia:10 “(1) The conduct of conciliation conferences prior to the arbitration of matters is a normal and regular feature of the Commission’s jurisdiction. (2) If, in the conduct of a conciliation conference, a member exhibits actual bias or gives rise to a reasonable apprehension of bias, the member is disqualified from further dealing with the matter and must recuse themself. If a party considers that there has been a breach of the rule against bias by a member at a conciliation conference, the party may make an application for the recusal of the member. The usual practice is that this application should in the first instance be made informally and, if not acceded to, should be the subject of a formal hearing and decision. A party aggrieved at a member’s decision in respect of a recusal application may, with permission, appeal the decision under s 604 of the FW Act. (3) Apart from recusal for breach of the bias rule, single members do not have the capacity under the FW Act to decide to cease to deal with matters which have been allocated to them for determination by the President, or a presidential member exercising the President’s powers on delegation, or to transfer such matters to another member. (4) If a party to a matter which has participated in a conciliation conference considers that there are public policy reasons why the member who conducted the conference should not proceed to arbitrate the matter, they may convey that view to the member’s chambers. It would be appropriate in this circumstance for the member to raise the matter with the President or presidential member who allocated the matter in the first place (allocating member). However, any request made by a party of this nature 6 Johnson v Johnson (2000) 201 CLR 488, [2000] HCA 48 at [12] 7 Regional Express Holdings v Hanson (2021) 306 IR 174; [2021] FWCFB 2755 at [60] 8 Section 577 of the Act; Tang v Curtin University [2022] FWC 2865 at [43] 9 Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63 at [7] 10 (2021) 307 IR 119, [2021] FWCFB 3191 at [45] -- 5 of 16 -- [2026] FWC 1612 6 should not be treated as an ‘application’ made under the FW Act to be subject to a formal adjudicative process. (5) The allocating member may then decide to re-allocate the matter, or not, having regard to the circumstances of the case. We agree with the Full Benches in [Watpac Construction Pty Ltd v Construction, Forestry, Maritime, Mining and Energy Union (2019) 287 IR 54, [2019] FWCFB 3855] and [United Firefighters’ Union v Gavin Wright; Country Fire Authority [2020] FWCFB 3315] that where, in a conciliation conference, a party has made without prejudice settlement proposals, has made concessions, or has communicated information about its case which it would not be prepared to disclose at a hearing, that may, absent any relevant countervailing factors, lead to the matter being re-allocated. (6) Countervailing considerations which may be taken into account by the allocating member may include: whether the parties engaged in the conciliation process on the basis that the member would continue to sit on the matter; the extent to which all parties were present at all stages of the conference; whether the conference was recorded; the need to avoid ‘member-shopping’, especially at smaller Commission registries; any significant delay which might be caused by the re-allocation of the matter; the efficient use of the Commission’s resources; and the general utility attached to conciliation conferences as a means to identify the real issues and the most efficient means for their adjudication.” Consideration [13] I will consider the Recusal Application by reference to the three-step process referred to at [7] above. [14] Before doing so, I observe that the sections of the Act to which the Recusal Application refers appear to have no relevance to her application. Section 581 is titled “Functions of the President”. Section 582 is titled “Directions by the President”. Section 620 is titled “Constitution and decision-making of an Expert Panel”. Ms Permus did not explain how any conduct in which I engaged on 4 and 5 March 2026 could have contravened those provisions, and in doing so, support an assertion of apprehended bias or a breach of the Code. I do not propose to address those sections of the Act. Step 1 – the factors which Ms Permus alleges might lead me to resolve the questions arising in the proceedings other than on their legal and factual merits [15] The Recusal Application is premised on conduct in which Ms Permus alleges I engaged during the directions hearing on 4 March 2026 and the MAC on 5 March 2026, and also from the directions contained in the Directions Email. -- 6 of 16 -- [2026] FWC 1612 7 Directions hearing on 4 March 2026 [16] Some context to the directions hearing is required: (1) On 8 January 2026, I arranged to issue directions to the parties in anticipation of Ms Permus’s unfair dismissal application being heard. (2) On 21 January 2026, my Chambers received an email from Shane Arkinstall, Avid Holding’s Human Resources & Corporate Services Lead. Mr Arkinstall stated that conciliation by a staff conciliator had been arranged for 16 December 2025 but had been cancelled; that Avid Holding had received correspondence from the Commission to the effect that the conciliation would be re-scheduled to a date in January or February 2026; and, that it seemed “a little strange that this stage has now been skipped over”. (3) In an email in response dated 22 January 2026, Ms Permus denied that the conciliation had been cancelled. She contended that it had been abandoned after Avid Holding failed to attend. She stated that after the company’s “no show”, she wished to proceed to a hearing. (4) Later on 22 January 2026, my Chambers received a further email from Mr Arkinstall. He provided information to suggest that Avid Holding had received a notice from the Commission informing the parties that an adjournment request had been granted, with the result that the conciliation that had been scheduled for 16 December 2025 had been cancelled, with a new notice of listing to be issued shortly. (5) I arranged for an email to be sent to Mr Arkinstall, copied to Ms Permus, on 23 January 2026, in these terms: “Dear Mr Arkinstall, It is Commissioner Sloan’s strong view that a negotiated settlement of proceedings is often preferable to proceedings [sic] to arbitration for a number of reasons. However, if Ms Permus is currently unwilling to participate in a conciliation, there is little that the Commissioner can do. A Member-Assisted Conciliation (MAC) may only be conducted by consent. As Ms Permus objects to a MAC being conducted, the matter will proceed to hearing. The matter has been allocated to the Commissioner on that basis. However, this does not prevent you from contacting Ms Permus directly if you wish to explore settlement options. It is possible that this would encourage Ms Permus to look more favourably on taking part in a MAC. Finally, the Commissioner reminds the parties of their obligation to comply with the Directions issued on 8 January 2026.” -- 7 of 16 -- [2026] FWC 1612 8 (6) On 19 February 2026, my Chambers received an email from Sparke Helmore Lawyers, stating that that firm had “recently been appointed to act on behalf of” Avid Holding. They sought an extension of time to comply with the Directions of 8 January 2026, and a direction that “the parties to first attempt conciliation of this matter”, having noted that “up until this stage conciliation between the parties has not occurred”. (7) On 20 February 2026, Ms Permus filed a document in which she opposed Avid Holding being granted permission under section 596 of the Act to be represented by a lawyer at the hearing; opposed Avid Holding being granted an extension of time in which to file its evidence and submissions; and, stated that she was “no longer interested in participating in a MAC”. (8) Later on 20 February 2026, my Chambers received an email from Sparke Helmore seeking to explain the events of December 2025 and why Avid Holding had not attended the conciliation on 16 December 2025. They requested that the matter be listed for a MAC. (9) I determined to list the matter for a further directions hearing. The parties were informed on 20 February 2026 that a directions hearing would take place on 27 February 2026. At Ms Permus’s request, the listing was adjourned to 4 March 2026. [17] Ms Permus contends that during the directions hearing I showed “bias and resentment towards her” by: (1) placing undue pressure on her to participate in a MAC, despite her objections. This included me allegedly suggesting that she would lose her case if she did not agree to a MAC. Ms Permus states she “was not keen for [a] MAC for a number of reasons” and “only agreed to a MAC after being accused of vicious intent from the respondent and member”; and (2) suggesting that it would not be unfair for Avid Holding to be represented by a lawyer, as her “applicant statement was well written”. She stated that “a teenager shouldn’t have to go against a law firm”. [18] I reject the contention that I placed undue pressure on Ms Permus to agree to a MAC. Certainly, the possibility of a MAC was the first matter I raised for discussion at the directions hearing. Avid Holding, through its legal representative Kim Hodge, forcefully pressed for the matter to be conciliated as, in its view, the company had been denied that opportunity. Ms Permus was initially equally adamant that she did not want to participate in a MAC. I stated that it was entirely a matter for Ms Permus whether to do so. [19] I described the potential benefits of a MAC, as I would in any similar situation. However, I did not tell Ms Permus that she would lose her case if she did not agree to one. -- 8 of 16 -- [2026] FWC 1612 9 I informed her that a negotiated outcome avoided the possibility that she might lose her case. The words I used were as follows:11 “The other advantage, of course, with conciliation is that you get an opportunity to resolve the matter without taking the matter forward into an arbitrated hearing with the consequential risks that we don’t know how this matter is going to end up. You might win and do better than anything that the trustee [Avid Holding] would be prepared to offer you in conciliation. You might win but not do as well as you might have done in conciliation, or you might lose altogether.” [20] Further, I did not accuse Ms Permus of having a “vicious intent”, and nor did Mr Hodge. Ms Permus may be confused. During the directions hearing, Mr Hodge stated that he might suggest to Avid Holding that Ms Permus was being vexatious in refusing to agree to a MAC. That arose in the following context:12 “MR HODGE: Commissioner, I just think I’d consider it highly unusual in the circumstances for there not to be a conciliation. It normally occurs as a matter of process. We haven’t had one. But the applicant is entitled to her position, but I would be putting to my client that it appears to be rather vexatious of her, rather than seeking to explore settlement opportunities. THE COMMISSIONER: Put whatever you wish to your client, Mr Hodge. And as you know, there would be no impediment to you contacting Ms Permus directly and opening settlement discussions directly without the involvement of the Commission.” [21] I proceeded to inform Ms Permus that the matter would proceed to arbitration as she had requested, and began to discuss with her the directions that I proposed to make. Ms Permus interrupted that discussion and we had the following exchange:13 MS PERMUS: I just wanted to comment that the respondent’s lawyer said that me going to a straight hearing is vexatious. THE COMMISSIONER: I don’t need you to respond to it, Ms Permus. I really don’t. MS PERMUS: Right. THE COMMISSIONER: Mr Hodge is right to the extent that by the time matters get to me, there has normally been an attempt at conciliation. For different reasons, that has not happened here, but the matter has been sent to me to progress the matter and I will do that. What I said to him and what I’m going to – it may be that Mr Hodge will contact you and make an offer. I’m not saying he will, but just it is possible. I would just encourage you to read that with an open mind. Are you with me? 11 Transcript, 4 March 2026, PN10 12 Transcript, 4 March 2026, PN17-PN18 13 Transcript, 4 March 2026, PN24-PN28 -- 9 of 16 -- [2026] FWC 1612 10 MS PERMUS: Yes. If there is a chance for a settlement when that (indistinct) I will go to a MAC hearing. Yes.” [22] On the question of legal representation, I have come to realise that I did not expressly grant Avid Holding permission to be represented by Mr Hodge at the directions hearing. That was my oversight. [23] However, during the directions hearing I did grant permission Avid Holding to be represented at the MAC. The relevant exchange was as follows:14 “THE COMMISSIONER: Anything for you, Mr Hodge? MR HODGE: Commissioner, no. Other than I am assuming that for the purpose of the conciliation I have permission to appear? THE COMMISSIONER: Ms Permus, Mr Hodge needs my permission to appear in these proceedings. I heard what you said before. Mr Hodge though, in response to my questions today has put a position that his client, on his advice, is considering a settlement of these proceedings. My inclination at this stage, is to allow Mr Hodge to appear tomorrow on behalf of the trustee in the hope that it will help facilitate a settlement and break down any interpersonal barriers that might exist between yourself and the trustee. But on the clear understanding that if it all goes pear-shaped tomorrow and the matter is not resolved, the question of whether the trustee ought to be permitted to be legally represented at the hearing is something I will determine later. Firstly, did you follow all of that? MS PERMUS: Yes. I did. THE COMMISSIONER: Are you okay for me granting permission to Mr Hodge for tomorrow only at this stage? MS PERMUS: Yes. That’s okay. THE COMMISSIONER: Mr Hodge, you have permission to appear tomorrow. MR HODGE: Thank you, Commissioner.” [24] It is clear that Ms Permus was given a chance to object to Mr Hodge’s appearance at the MAC, and did not do so. It is relevant that the grant of permission was expressly confined to the MAC. [25] In this context, I reject the assertions in Robert Permus’s statement that during the directions hearing I demonstrated “clear resentment and bias” or “prejudgment of the case”, or that I provided “unsolicited advice to comply with [my] requests”. 14 Transcript, 4 March 2026, PN60-PN68 -- 10 of 16 -- [2026] FWC 1612 11 MAC on 5 March 2026 [26] In her Recusal Application, Ms Permus contend: “In the MAC the member confirmed my belief of apprehended bias and inappropriate conduct in proceedings. The member displayed consistent bias and resentment to me and my support person. Below are quotations from the member in the MAC.” [27] The Recusal Application goes on to provide five “quotes” from the MAC, accompanied by submissions as to what conclusions can be drawn from them. Before dealing with those matters specifically, I make several observations. [28] First, the MAC was conducted on a confidential and without prejudice basis. The Commission kept no recording of the proceedings and neither party was granted approval to make such a recording. I am necessarily relying on my recollection of what was said at the time, informed by the limited notes that I took and in part by the way in which I generally conduct such proceedings. [29] Second, I do not have an independent recollection of saying all of the words that Ms Permus attributes to me. Some are consistent with what I would normally say at the outset of a MAC, and others are reflective of my general recollection of the discussion. I am unable, however, to accept that the “quotes” in the Recusal Application accurately reflect what was said. [30] Third, the “quotes” reflect only a part of the discussion during the MAC. [31] Fourth, the “quotes” are edited, in the sense that Ms Permus has added punctuation such as exclamation marks and in one place used capital letters. I do not necessarily accept that the punctuation is appropriate or reflective of the discussion (assuming the words were said). I have regarded the punctuation as being akin to a submission, in that it reflects how Ms Permus contends my behaviour ought to be viewed. [32] In light of these observations, I have decided not to reproduce the “quotes” in this decision. It will be clear to the parties what I am referring to. [33] At paragraph 4 of the Recusal Application, Ms Permus quotes me as encouraging the parties not to spend a lot of energy or time talking about why the dismissal was or was not unfair, but to concentrate on what might be done to resolve the matter. This is the sort of thing that I would say at the outset of a MAC. However, Ms Permus contends that I then permitted Avid Holding to explain why her dismissal was not unfair and denied her the chance to do so, or to respond. [34] I do not accept that contention. Both parties spoke relatively briefly to their positions on the merits of the matter, and I did not allow either of them great latitude to do so. As I had sought to make clear, the MAC was not the time to explore the merits of the case in any details. Rather, I explained that its purpose was in large part designed to avoid having to do so. I accept that during my private conferences with Ms Permus and her father I declined to discuss the merits of the matter. However, that was in the context of the stated purpose of the MAC. -- 11 of 16 -- [2026] FWC 1612 12 [35] At paragraph 5 of the Recusal Application, Ms Permus quotes me as saying that the parties should see what could be done on a realistic and commercial basis. Again, that is the sort of comment that I would make at the outset of a MAC. However, Ms Permus contends that it reveals me “assuming that the dismissal should be treated in a way that would protect the respondent’s financial assets for their benefit. Instead of focusing on the facts in the matter. It removes the respondent's consequence of actions.” [36] I do not accept those contentions. It is unremarkable for a Member to encourage parties to think realistically and commercially about their positions. The cost, inconvenience and risks of litigation are matters of relevance to all parties to litigation, regardless of the facts of the matter. The desirability of maintaining a realistic and commercial mindset is not confined to the respondent. [37] At paragraph 6 of the Recusal Application, Ms Permus quotes me as stating that Avid Holding had given her lawful and reasonable directions and that she was – presumably appropriately – dismissed due to her unwillingness to comply with them. She contends that in that passage I criticised her, and revealed bias and favouritism towards Avid Holding. [38] I do not accept those contentions, which may perhaps reveal a misunderstanding on Ms Permus’s part. My recollection is that at the outset of the MAC, I provided a brief summary of what I understood each parties’ positions to be. I often do this in such proceedings to make it clear to the parties that I understand their cases in broad terms, in the hope that it will reassure them that it is not necessary to traverse the facts of the matter. The words Ms Permus attributes to me are consistent with that practice, and reflect what I understood Avid Holding’s case (in broad terms) to be. However, it would have been clear in context that I was doing no more than summarising the case that Avid Holding was advancing, and that I was not drawing conclusions or making any findings. [39] At paragraph 7 of the Recusal Application, Ms Permus quotes a series of exchanges that I had with her and Robert Permus during private conferences. She contends that the dialogue reveals me being aggressive, shouting and not permitting her or Mr Permus explain their points of view. [40] The extract at paragraph 7 of the Recusal Application (absent the punctuation) is consistent with my broad recollection of the exchanges that I had with Ms Permus and Mr Permus. However, it is by no means comprehensive and is not reflective of the totality of the discussions. [41] Consistent with my remarks at the opening of the MAC, my aim in the private conferences was to explore means by which the matter might be resolved. Mr Permus sought repeatedly and forcefully to castigate Avid Holding for the way he considered it had treated Ms Permus. I accept, as Ms Permus contends, that I interrupted Mr Permus on several occasions. In my view, his contributions were not conducive to a negotiated outcome, a view which I sought to explain to him. My aim was simply to ascertain whether or not there was fertile ground for a settlement discussion. The “point of view” that Ms Permus and Mr Permus sought to convey was why the Commission should find in favour of Ms Permus on the merits. As I have stated, I had explained to the parties that the MAC was not the forum in which to -- 12 of 16 -- [2026] FWC 1612 13 have that question resolved. I had difficulty getting either Ms Permus or Mr Permus to focus on and discuss the details of proposals that Avid Holding made. [42] I acknowledge that during these exchanges I became frustrated, and that this may well have been revealed through my tone of voice. I also accept that I was firm and direct in some of my exchanges with Mr Permus. Mr Permus and Ms Permus may well have taken umbrage at my tone and in being interrupted. But I did not shout and nor was I aggressive. I do not accept Ms Permus’s contention that my conduct contravened clause 4.3.2 (Conduct in proceedings) of the Member Code of Conduct. [43] I also do not accept the assertion in Mr Permus’s statement that during the MAC I “confirmed this conduct of apprehended bias and inappropriate conduct”. [44] In this context, I note the following exchanges that I had with the parties at the directions hearing:15 [THE COMMISSIONER]: …Which gives rise to this, do you have a problem with me doing the MAC, Ms Permus? MS PERMUS: That shouldn't be an issue. No. THE COMMISSIONER: I will be candid about this. The only reason I raised it is we will be having a conversation and if at the end of that MAC the parties can't resolve it, I would expect in the usual course that I would then simply list the matter or make arrangements for the matter to proceed to a hearing and I would conduct that hearing. Ordinarily, you would be entitled to apply to have me recuse myself, but I would need to be satisfied that there were grounds to do that. And really what I’m trying to do is just avoid any uncertainty. We might have a robust conversation at the MAC, but I might still be the person hearing the matter as well. Do you understand? MS PERMUS: Yes. I understand. THE COMMISSIONER: Mr Hodge, do you have a problem? MR HODGE: Commissioner, no. We have no problem. Thank you.” [45] Finally in relation to the MAC, while Ms Permus did not raise this argument, I observe for completeness that I do not consider that at the MAC either party “made concessions, or … communicated information about its case which it would not be prepared to disclose at a hearing”, to adopt the language of Amec Foster Wheeler referred to above. That is, as a consequence of the MAC I am not privy to information about the case that is not disclosed in the material the parties have filed. 15 Transcript, 4 March 2026, PN35-PN40 -- 13 of 16 -- [2026] FWC 1612 14 The Directions Email [46] Ms Permus contended that the Directions Email demonstrated unfairness in three ways: (1) by allowing her only two days to file and serve any additional evidence and submissions, which was insufficient for a self-represented litigant; (2) by allowing Avid Holding seven days in which to do so; and (3) by allowing Avid Holding the chance to respond to the Recusal Application, as it had not been privy to the private conversations conducted during the MAC. [47] The directions in the email were intended to enable the Recusal Application to be dealt with expeditiously, particularly with the hearing (then) being scheduled for 1 May 2026. I consider that they provided both parties sufficient time to comply. In any event, Ms Permus could have requested further time if required, but she did not. [48] The apparent difference in the time allowed for Avid Holding to file its material and that given to Ms Permus is explained by the fact that the Easter weekend came between the respective dates for filing. [49] Ms Permus’s objection to Avid Holding being afforded an opportunity to respond to the Recusal Application is misconceived. In the first place, it is the respondent to these proceedings and procedural fairness requires that it be given the chance to be heard on matters affecting the proceedings. Further, as is clear from the discussion above, the Recusal Application does not rest solely on what was said in my private conferences with Ms Permus and Mr Permus during the MAC. Email of 30 April 2026 [50] At the hearing of the Recusal Application on 30 April 2026, Ms Permus raised another concern, relating to an email that my Chambers had sent to the parties that day. It is necessary that I place that email in context. [51] After I had issued the Directions Email, Ms Permus sent two emails to my Chambers raising her concerns at Avid Holding being permitted to attend the hearing of the Recusal Application. She was informed in an email that my Chambers sent to her on 28 April 2026 that the Commission would not exclude Avid Holding from the hearing. However, in the same email we requested that Avid Holding confirm by 4.00pm on 29 April 2026 whether it intended to attend the hearing of the Recusal Application and, if so, whether it would seek to be heard on it. [52] At 11.01am on 29 April 2026, having not seen a response from Avid Holding, I arranged for my Chambers to send an email to the parties in these terms: -- 14 of 16 -- [2026] FWC 1612 15 “In the absence of a response from Avid Holding to our email below, the Commissioner will proceed on the basis that the company does not intend to attend this afternoon’s hearing or wish to be heard on the recusal application. Should Avid Holding intend to attend the hearing (as it is entitled to do), the Commissioner flags his provisional view that it should not be granted permission to be represented by a lawyer at the hearing.” (Emphasis in original) [53] A short while later, my Chambers received an email from Mr Hodge, attaching an email that he had sent to my Chambers the previous day stating that only Mr Arkinstall would attend the hearing of the Recusal Application on behalf of Avid Holding. Enquiries revealed that the email had been received, but had not been forwarded to me. My Chambers wrote to the parties confirming receipt of the email from Mr Hodge on 28 April 2026, noting that it had escaped our attention and apologising for any confusion. [54] I understand that the contention that Ms Permus made at the hearing was that the email that my Chambers sent to the parties at 11.01am on 30 April 2026 was a cynical attempt to create the impression of impartiality, by purporting to refuse Avid Holding permission to be legally represented at the hearing of the Recusal Application when it had already made it clear that it would not seek such permission. I reject that contention. I was unaware of Mr Hodge’s email of 28 April 2026 at the time that the one on 30 April 2026 was issued. Further, in a case where legal representation is a live issue in this case and Avid Holding did not apparently wish to be heard on the Recusal Application, it seemed sensible to express the provisional view contained in the email of 30 April 2026. Step 2 – what is the logical connection between the relevant factors and the apprehended deviation from deciding the case on its merits? [55] Having regard to the matters I have traversed above, I do not accept that there is a logical connection between the grounds on which Ms Permus relies and the claimed apprehension of bias. Step 3 – assessment of the reasonableness of that apprehension from the perspective of a fair- minded lay observer [56] It is not necessary to address this step. Conclusion [57] It is clear from the authorities to which I have referred that I should not lightly agree to recuse myself. Ms Permus would need to provide substantial grounds to warrant me doing so. And there has been no matter identified at step 1 that might be said to lead me to decide this case other than on its legal and factual merits. [58] I do not consider that a fair-minded and appropriately informed lay observer might reasonably apprehend that I might not bring a fair, impartial and independent mind to the determination of this matter on its merits. It follows that I am not persuaded that Ms Permus has made out a basis on which I should recuse myself. -- 15 of 16 -- [2026] FWC 1612 16 [59] The Recusal Application is dismissed. COMMISSIONER Appearances: Ms A Permus appearing on her own behalf. Mr S Arkinstall appearing on behalf of the respondent Hearing details: 30 April 2026 Video via Microsoft Teams Final written submissions: Applicant 2 April 2026 Printed by authority of the Commonwealth Government Printer <PR799719> -- 16 of 16 --