What changed or was decided

Commissioner Hunt of the Fair Work Commission (FWC) has formally recused herself from hearing an unfair dismissal application involving the National College of Australia Pty Ltd.

The decision followed the repeated failure of the respondent’s director to attend scheduled in-person hearings. Given his non-attendance and serious credibility concerns—including his extensive use of AI to draft statements—the Commissioner ruled it would be unfair to the applicant to allow him to give evidence via Microsoft Teams.

Consequently, to ensure a fair-minded lay observer would not perceive a lack of impartiality, the Commissioner stepped down so the matter could be reallocated to another FWC member.

Key facts

• The Parties: The applicant, Holly Vitols, brought an unfair dismissal claim against her former employer, National College of Australia Pty Ltd. The respondent’s sole shareholder is Digitally Visible Pty Ltd, which is in turn owned by Mr Kevin Gow, a receptionist at another business run by the respondent’s director, Mr Adam Cox.
• Repeated Absences: Mr Cox was ordered to attend in-person hearings on three separate occasions but failed to do so, providing only one medical certificate for his initial absence. On another occasion, he communicated to chambers that the Australian Federal Police would have to pick him up.
• Evasive Structure: Mr Gow gave evidence indicating he had no functional knowledge of Digitally Visible Pty Ltd’s affairs, despite being its sole shareholder, director, and secretary. He was unaware that the company owned the National College of Australia.
• Coercive Correspondence: Commissioner Hunt’s chambers received emails from an address linked to News Cop Pty Ltd—a company owned by Mr Cox—threatening to publish an exposé on the Commissioner if she did not respond to a series of questions.
• Associated Entities: The Commissioner identified 11 businesses controlled by Mr Cox as potential associated entities of the respondent.

Law or legal principle

In determining whether a Commission member must step down from a proceeding, the FWC applies the established test for apprehension of bias. A member must recuse themselves if a fair-minded lay observer might reasonably apprehend that they might not bring an impartial mind to the resolution of the matter.

Additionally, under section 50AAA of the Corporations Act 2001, an “associated entity” relationship can be established if one entity controls another, and the operations, resources, or affairs of that other entity are material to the controlling entity. As Commissioner Hunt clarified, a common shareholding between the corporations is not the legal test for establishing control and association.

Finally, the Fair Work Act 2009 strictly protects the integrity of Commission proceedings. Under section 674(5) of the Act, it is an offence for a person to use words—either written or spoken—intended to improperly influence a member of the FWC or a participant in a proceeding.

Decision or outcome

Commissioner Hunt formally recused herself from the unfair dismissal application to ensure the integrity of the proceedings.

While the Commissioner had initially proposed allowing Mr Cox to give evidence via Microsoft Teams to keep the case moving, she concluded upon reflection that this was no longer appropriate. Given Mr Cox’s extensive use of AI to draft statements and the significant credibility issues identified during Mr Gow’s testimony, allowing video evidence would be highly unfair to the applicant, as Mr Cox was likely to remain deliberately evasive about his control of the respondent and its associated entities.

Because Mr Cox would inevitably refuse any order to attend in person, Commissioner Hunt determined that the ongoing impasse could only be resolved by reallocating the file. She stepped down so that a newly appointed FWC member could hear the matter fresh, free from the compromised dynamics.

Although she refrained from making formal findings, the Commissioner identified 11 businesses controlled by Mr Cox as potential associated entities. She also warned that the threatening emails sent to her chambers from the News Cop Pty Ltd address came perilously close to breaching the improper influence provisions of the Fair Work Act 2009, describing the employer’s conduct as “reprehensible.”

What it means in practice

This case serves as a powerful reminder of how the FWC manages extreme employer non-compliance, artificial corporate structures, and attempts to bypass in-person scrutiny.

• Unmasking corporate shells: Organisers and delegates often confront employers claiming they have no money or are “dormant” entities. As this case demonstrates, the FWC will look directly behind these structures. Under the Corporations Act, “common shareholding” is not the test for control; the Commission will evaluate who actually directs the operations, resources, and material affairs of the workplace.
• In-person evidence cannot be avoided: Employers cannot simply choose to appear via video link to avoid difficult questions or to use external aids like AI to draft their responses. Where a witness has significant credibility issues, the Commission can—and will—insist on in-person attendance to ensure a fair hearing.
• Protection from intimidation: Unions and workers should feel confident that the FWC will not tolerate threats, media “exposés,” or coercive tactics designed to influence tribunal members or participants. Such behavior is a serious statutory offence under the Fair Work Act and will be strongly condemned.
• Recusal to protect the worker: While a commissioner stepping down might seem like a delay, it is a practical step to prevent the employer from later appealing the final decision on the grounds of “apprehension of bias.” It ensures the worker gets a legally robust, untainted hearing.

Sources

• Holly Vitols v National College of Australia Pty Ltd [2026] FWC 3274 (Decision of Commissioner Hunt, 27 August 2026).
• Corporations Act 2001 (Cth), s 50AAA.
• Fair Work Act 2009 (Cth), s 674(5).