Application by Suresh Bhalla

[2022] FWC 2039

[2022] FWC 2039

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.789FC - Application for an order to stop bullying

Application by Suresh Bhalla

(SO2022/219)

COMMISSIONER O'NEILL MELBOURNE, 2 AUGUST 2022

Application for recusal - reasonable apprehension of bias – application refused.

1. On Monday 27 June 2022, I conducted an initial conference to deal with two applications made by Ms Bhalla. The first was an application lodged pursuant to section 372 of the Fair Work Act 2009 (Cth) (Act) (C2022/2656) and the second an application for an order to stop bullying (SO2022/219). The matters were not resolved at the conference, and the next day I issued Directions in the anti-bullying application.

1. On 3 July 2022, Ms Bhalla made an application seeking that I recuse myself on the ground of apprehended bias. On 11 July 2022, I issued Directions to the parties to file material concerning the recusal application. The Applicant filed on 26 July 2022 in accordance with the Directions.  The Respondent filed at 4.02pm, 2 minutes after the directed time. The Applicant objected to the acceptance of the Respondent’s late filing, as it did not comply with the Directions.  I have decided to allow the Respondent’s late filing of the submissions.  I do so because of the very short period of delay (two minutes), because no disadvantage to the Applicant arises, and the submissions were brief and dealt principally with the relevant legal principles to be applied, which is not contentious.

1. Ms Bhalla submits that I have “acted in a way that gives rise to a reasonable apprehension of prejudice experience or contact with someone involved in the case or through an alter ego.”[1]  She submits that I appear “to have an interest or involvement in, or special knowledge, beliefs, or opinions about the case that conflict with or could otherwise frustrate [my] unbiased fact finding and legal conclusions.’[2] Also, that I have preconceived information and ideas about the outcome of her anti-bullying application, that I will not be impartial and will not deal with it in a fair and balanced way.[3]  Her concerns are based on how she contends I acted during the conference on Monday, 27 June 2022.  Ms Bhalla contends:

1.  That at the outset of the conference I said “Suresh you have sent lot of evidences and information. I did not go through it all.” 

2.  That during the conciliation conference I made the following comments to her:

(a) You were not given this job;

(b) You leave (resign or separate) your workplace;

(c) Your ‘all matters with the Company’;

(d) If Member is going to hear this case, it will not be successful;

(e) They are not paying you; and

(f) I suggest, they proceed to terminate your employment.

1. She also says that I dealt with her in a dismissive and demeaning manner and tone.[4]

1. Ms Bhalla correctly identifies the test for recusal based on a reasonable apprehension of bias as:

“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 was required to decide.”[5]

1. And as the Full Bench explained in Regional Express Holdings Ltd & Ors v Hanson:

“…That principle gives effect to the requirement that justice should both be done and be seen to be done, a requirement which reflects the fundamental importance of the principle that the tribunal be independent and impartial. The application of the apprehension of bias principle requires two steps.  First, it requires the identification of the factor which it is said might lead the judge or tribunal member to decide a case other than on its legal and factual merits. The second step is that there must be an articulation of the logical connection between the matter and the apprehended deviation from the course of deciding the case on its merits. It also remains necessary to determine whether the apprehension is reasonable considered in the totality of all the relevant circumstances, and this is sometimes described as a third step.”[6] (footnotes omitted)

1. Also relevant is that the authorities have indicated that a decision-maker ought not to disqualify herself lightly. While it is important to avoid apprehended bias, “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.”[7]

1. Dealing with Ms Bhalla’s first contention that at the outset of the conference I said, “Suresh you have sent lot of evidences and information. I did not go through it all,” she also submits that I read out the Form F8A response filed by the Respondent as my “opening statement, pushing me aside, by mentioning you have different opinion.”  Ms Bhalla submits that I did not familiarise myself with the factual and legal merits of the case, and this lack of knowledge meant that I “departed from the merits of the case.” Ms Bhalla further claims that because I ‘departed from the merits of the case’, this created a personal interest of deciding the case against her, and that this could affect my proper decision-making.

1. My recollection (as the conference was not recorded) is that at the beginning of the conference I explained that it was to discuss the two applications made by Ms Bhalla, namely an application under s.372 alleging contravention of the general protections provisions and an application for an order to stop bullying. The applications relate to Ms Bhalla’s employment with Big W (Woolworths) and allegations that she has been subjected to various forms of bullying and adverse action. They also concern differing views of the parties about whether Ms Bhalla’s role was as a ‘Cosmetics Team Member’ or a ‘Store Team Member Level 1’. I explained that the conference would be a fairly informal exploration and discussion of the applications to see whether the matters could be resolved by agreement, and that after hearing from each of them I would likely have separate discussions with each of the parties.

1. My practice, which I followed in this conference, is to spend 2-3 minutes giving a high-level summary of my understanding of the key factual circumstances, claims and responses drawn from both the application and responses submitted.  I do this so that the parties are aware that I have read the material (which can enable the discussions to progress more efficiently), and to enable the parties to point out if I have missed anything significant in my brief summary.  When I do so, I say, for example, “the Respondent says XYZ, and the Applicant disagrees.”  It appears to me that Ms Bhalla has misconstrued the purpose of the conference (that it was an attempt to resolve the dispute and was not to make findings of any kind) and referring in my high-level summary where the Applicant had a different view to the Respondent’s claims.

1. I also commented that I was aware that Ms Bhalla had made an earlier s.372 application in 2019 that had proceeded to the Federal Circuit Court and commented that there was clearly a significant history over several years. I noted that a very large amount of information had been provided in the documents submitted, and that whilst I had not had the opportunity to carefully read all the material filed, I had a reasonable level of understanding of the basis of the applications and the responses. The context for this comment was that Ms Bhalla had, in addition to her two detailed applications which included 4 attachments, lodged a further document and 3 emails with 22 attachments on 17 June 2022, and on 24 June, Ms Bhalla submitted a response to the Respondent’s Form F8A with a further 4 emails and 15 attachments. On the same day, Ms Bhalla submitted a response to the Respondent’s Form F73 with another 4 emails with 15 attachments, most of which were the same as the other email received on that day. There were approximately 290 pages of material, though some was duplicated. I had not had the opportunity to forensically read all of the material, and wanted to be transparent about this in part to explain any gaps in my understanding of the claims and responses that might emerge during the conference.

1. The above reflects what I said in the first few minutes of the conference to the best of my recollection.  I did not address Ms Bhalla by her first name, or read out the Form F8A, or “push the Applicant aside.”

1. I then invited Ms Bhalla and the Respondent to say what they wanted to and asked that they focus on resolving the dispute and what outcome they are hoping to achieve.  Ms Bhalla then proceeded to speak at great length about her claims.  After some time, I said words to the effect that I was sorry to interrupt her, that this was a discussion to see if an agreement could be reached and said that it would be helpful if she could focus on the outcome she was hoping to achieve.  The same thing happened more than once, and so after a little while I interrupted again, and said that I thought it would be more helpful to move into private discussions with the parties.  For the remainder of the conference I went back and forth between the parties.

1. In private session, Ms Bhalla continued to talk at great length and great speed about what her complaints against Big W were. Again, after some time, I interrupted her and explained that I was having trouble following what she was saying because she was speaking so quickly, and could she please try and slow down.  She apologised and said that when she is nervous she speaks too much and too quickly. 

1. In relation to the specific comments that Ms Bhalla contends I made to her during the conference, the following is my recollection.

1. In relation to the first comment I am said to have made, I have no recollection of saying “you were not given this job.” However, one of the issues in dispute was whether Ms Bhalla’s role was as a Cosmetics Team Member (as she contended) or a Store Team Member Level 1 (as Big W contended). I may have made a comment along these lines in the context of conveying the Respondent’s view expressed to me in private session, and not any pre-judgment that I had made.  The conference was the first opportunity to explore whether any resolution could be achieved by agreement of the parties. I was attempting to explore whether an agreement could be reached without the need for formal hearing and determination.  Whilst the material filed gave me a general understanding of the issues between the parties, at this early stage I was not in a position to form or convey any definitive views as to the merits or otherwise of the various claims in either Ms Bhalla’s anti-bullying or general protections applications and had not done so.

1. There is limited material before the Commission at this point.  The assessment of Ms Bhalla’s application will only occur after evidence and submissions are filed, and evidence given during a hearing.

1. In relation to the claim that I said, “You leave (resign or separate) your work place” and “Your all matters with the Company”, the Respondent had made it clear to me in private session that if they were to resolve the matter it would only be on the basis of a release and resolution of all the Applicant’s claims and involve the cessation of the Applicant’s employment by resignation. This was said in the context of the earlier s.372 application to the Commission, the Federal Circuit Court application, another s.372 application she had made,[8] and the present two applications. In private session I conveyed this to Ms Bhalla, explaining that the Respondent’s position was that all matters would need to be resolved not just the present applications, and that this would involve the ending of her employment.

1. Ms Bhalla’s complaints include that she has not been promoted and has unlawfully and unreasonably been required to undertake entry level tasks and duties. The Respondent contends that her role as a Store Team Member Level 1 includes these duties. Ms Bhalla’s doctor has certified that these entry level duties are ‘not suitable’ and would ‘always pose a risk to her health and safety’. In light of this, the Respondent has required Ms Bhalla to take unpaid personal leave until she provides a full medical clearance to return to her duties.

1. I did not say that if I hear the anti-bullying case it will not be successful, nor did I suggest that the Respondent terminate Ms Bhalla’s employment. It seems to me that Ms Bhalla has misconstrued what I tried to convey to her.  I did attempt to explain to Ms Bhalla that if she is unable to get a full clearance to return to work, it is possible that at some point Big W may decide to terminate her employment.  I explained that if that was to occur, the Commission would be unlikely to have jurisdiction to hear and decide her anti-bullying application.  I explained that this is because the Commission must be satisfied not only that bullying has occurred, but that there is a risk of the bullying continuing, and that it was unlikely to be able to be satisfied about that if she is no longer in the workplace. It seems to me that Ms Bhalla misunderstood my comments and has taken them to be a pre-judgment of her case, rather than my attempt to provide her with information to assist her in considering whether to negotiate a resolution of all matters with the Respondent.

1. In my view, viewed in context, there is no logical connection between my comments and actions during the conference and the possibility that I might depart from impartial decision making, either because I have pre-judged Ms Bhalla’s case or for any other reason. I do not accept that I have a personal interest or any conflict of interest in proceeding to hear and determine Ms Bhalla’s anti-bullying application. I am not persuaded that a fair-minded lay observer might reasonably apprehend that I might decide the matter other than on its merits.

1. The test for apprehended bias is not concerned with apprehensions that are fanciful or unreasonable. In forming a view as to whether I might not bring an impartial mind to resolution of the questions for determination, the fair-minded lay observer is taken to have an understanding of the workings of the Commission and the legislative framework within which it operates.

1. For the reasons above, I am not satisfied that a fair-minded lay observer might reasonably apprehend that I might not bring an impartial mind to resolution of the questions for determination. The recusal application is refused. 

1. Further directions will be issued to progress Ms Bhalla’s stop bullying application.

COMMISSIONER

[1] Applicant’s submissions p.8.

[2] Ibid.

[3] Ibid, p.9.

[4] Applicant’s submissions at [16].

[5] Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337.

[6] [2021] FWCFB 2755 at [57].

[7] Re JRL; ex parte CJL (1986) 161 CLR 342 at 253.

[8] C2021/4347.

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