Applications by Alex Sandy Brown
[2024] FWC 1994
•30 JULY 2024
| [2024] FWC 1994 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.789FC - Application for an order to stop bullying
Applications by Alex Sandy Brown
(AB2024/396 & AB2024/439)
| COMMISSIONER HUNT | BRISBANE, 30 JULY 2024 |
Applications for an FWC order to stop bullying Application for an FWC order to stop bullying – recusal application
This decision concerns a recusal application made by Mr Alex Brown.
Mr Brown has made two stop bullying applications to the Fair Work Commission (the Commission) in respect of fellow workers at a swim school in which they are employed. The first application, made on 31 May 2024, is made in respect of two colleagues. The second application, made on 12 June 2024, is in respect of his manager.
On 14 June 2024, Mr Brown expressed a view to the Commission’s Anti-Bullying and Sexual Harassment team that he would prefer the application against his manager be dealt with first, because if his two colleagues “learned of the issues….regarding our manager, a lot of gossip would likely circulate in the workplace, and that might make it harder to repair the problems in the workplace.”
The Employer Party and the three Persons Named are represented by Ms Athena Koelmeyer of Workplace Law. On 19 June 2024, and then later 26 June 2024, Ms Koelmeyer lodged a Form F53, notifying her representation of the Employer Party and the three Persons Named. On 26 June 2024, Ms Koelmeyer requested the two applications be listed together for conference.
On 27 June 2024, Mr Brown provided reasons as to why the Commission should not join the applications. He further stated the following:
“The employer has nominated Athena Koelmeyer as their representative, and she emailed the request for a joint Conference yesterday. However, Athena’s office is in Sydney, and I have never seen her in the workplace, so I cannot see that she has any knowledge of the workplace that would assist in restoring a safe harmonious workplace.”
On 25 June 2024 and 2 July 2024, I was allocated the respective applications.
Having read all of the material of the parties, the following correspondence was sent from my chambers to the parties on 3 July 2024:
“Dear parties,
Reference is made to the above matters which have been allocated to Commissioner Hunt. All further correspondence directed to the Fair Work Commission (the Commission) in respect of these matters are to be sent to Commissioner Hunt’s chambers at the contact details below, copying in the other parties to this matter.
Whether the matters are to be heard together
The Commissioner acknowledges the Applicant and Employer’s position in respect to whether the matters of AB2024/396 and AB2024/439 should be heard together.
The Commissioner has considered each party’s position and has decided to join the matters and they will be heard together.
Conference
Accordingly, the Commissioner considers it appropriate to convene a teleconference between the parties (including the person named) in respect to the two applications. The matter will be listed for teleconference at 1:30pm (AEST) on Monday, 8 July 2024. A notice of listing will be sent in due course.
All parties are kindly asked to advise of the full names and contact numbers of each person to be dialled into the conference by 10:00am (AEST) on Friday, 5 July 2024.
Representation
The Employer Party and Persons Named seek to be represented. Noting the Applicant’s objections, the Commissioner grants leave for the Employer Party and Persons Named to be represented pursuant to s.596(2) of the Act, noting that the matters are complex, involving ongoing relationships in the workplace.”
That evening, Mr Brown enquired in respect of two email addresses and to whom they belong. On 4 July 2024, my Associate confirmed in correspondence that one of the email addresses was that of Ms Koelmeyer, and the other was a Person Named. The following was included in the email:
“…It is expected that the Applicant, Employer and all three persons named are to attend the conference. In yesterday’s email, the Commissioner granted leave for the Employer Party and Persons Named to be represented.”
On the morning of 8 July 2024, prior to the scheduled conference at 1:30pm that day, Mr Brown sent correspondence in respect of my decision to grant leave for the Employer Party and Persons Named to be represented. He enquired where the Commission could be satisfied that he had earlier objected, and then provided submissions and case authorities as to why I ought not grant leave for the Employer Party and Persons Named to be represented by a lawyer. He asserted that the employer’s choice of representation has “introduced False Statements and inconsistent claims in its documents.” He also sent an email attaching a PDF titled, “C 1 – 3 July 2024 email – Representation granted to Employer.pdf”.
Prior to the conference being held, my Associate sent correspondence to the parties, including the following:
“Please be advised the Commissioner noted the Applicant’s objections to the representatives as raised in his email of 27 June 2024 at 1:45pm. The email is attached for ease of reference, in which the Applicant advised he does not see how Ms Koelmeyer has “any knowledge of the workplace that would assist in restoring a safe and harmonious workplace.
Given the conference is listed at 1:30pm today, the Commissioner advises she will discuss all other matters raised by the Applicant at the conference.”
At 1:29pm, Mr Brown sent the following correspondence:
“Dear Fair Work,
Thanks for your update on this.
I had read that email as I searched for a previous occasion,
but note that paragraph in the email does not formally object to representation,
but merely expresses puzzlement on how a person based in Sydney,
who has never been in our workplace could be of any assistance.
That email of June 27 also did not reference the Fair Work Act,
and Fair Work case law.....
However, my submission this morning does formally object to representation,
and refers to
the Fair Work Act,
and Fair Work case law.....”
At the commencement of the telephone conference on 8 July 2024, I informed the parties that on 3 July 2024 in my correspondence to the parties, I had made two interlocutory decisions; the first to join the matters, and the second to grant leave for the Employer Party and Persons Named to be represented by a lawyer.
I informed Mr Brown that I had made those two decisions on 3 July 2024, and that if Mr Brown wished to seek leave to appeal those decisions, that was available to him to do so. Mr Brown did not raise any further objection in respect of my two decisions for the duration of the telephone conference which lasted just over one hour.
During the telephone conference, I informed Mr Brown that if he wished to have the matter programmed for arbitration, I would do so, allowing the parties time to prepare their evidence and submissions. Alternatively, I would hold a further telephone conference of the parties in three weeks, on 29 July 2024. Mr Brown advised that he did not yet wish for the matter to be programmed for arbitration. Accordingly, the matter was adjourned until a further telephone conference on 29 July 2024.
On 23 July 2024, Mr Brown sent the following correspondence to my chambers only, without copying in the other parties:
“Dear Commissioner Hunt,
The Commissioner had said during our Conference that I could choose to go to Hearing, and she would set dates for submissions.
The Respondents suggested another conference, for July 29, but I cannot see that they are going to propose any positive solution,
and I would rather go to a Hearing to work to solve the Bullying problem.
Can you please set the dates for submissions for the Hearing”.
The correspondence was not immediately addressed. On 25 July 2024, Mr Brown made a recusal application. He requested I recuse myself from hearing his applications to “be replaced with a different Commissioner who will be fair and following the Fair Work Act and Fair Work Case Law.”
Mr Brown stated the following grounds as to why I should recuse myself:
“Our Conference was Monday July 8 with Commissioner Hunt, for Stop Bullying Applications AB2024 / 396 and 439.
The Fair Work website describes what happens at a Conciliation Conference at:
The employee and the employer both take part in conciliation.· We provide an independent person to guide you
A conciliator from the Fair Work Commission runs the meeting. They are independent and do not take sides.
However, I was quite disappointed to find that the Commissioner was not independent, and appeared to take sides in favour of the Respondent, and make an urgent request for a different commission Member to take over the matter.
Reason #1 – Lack of Procedural Fairness
I had submitted a well researched letter ( Attachment 1 ) opposing representation for the large company Respondent, with examples of:
1. Relevant Fair Work Case Law, and
2. Relevant parts of the Fair Work Act
However, I was quite shocked the Member said she had already made up her mind……. and therefore apparently did not want to objectively consider my submission, and also did not seem to want to follow Fair Work Case Law, and the Fair Work Act !Reason # 2 – Lack of Independence / Obvious Bias
My letter to Commissioner Hunt ( Attachment 1 ) included excerpts from the Fair Work Act insisting that Fair Work was not to be an adversarial venue….which is one reason I objected to the large Employer Respondent’s lawyer ( a lawyer’s work is largely adversarial )
However, our Conference on Monday became quite adversarial , with Commissioner Hunt leading the way, by showing her bias against me, and
· Repeatedly hounding me for not having additional email written evidence that I had told my boss that I was available for work
· However, at the same time the Commissioner did not once ask the large company employer Respondent for written documentation to prove claims that they had made
Commissioner Hunt was already operating in adversarial mode, despite:
1.The fact that we were not in a Hearing, but in a Conference, where the goal was to find a compromise to resolve the matter, and
2.The fact that the Fair Work Act does not wish any part of Fair Work to be adversarial !
Can you please assist with this, so this Fair Work matter will be ‘ Fair’”
In further submissions, Mr Brown referred to the Commission’s Member Code of Conduct. Mr Brown submitted that during the 8 July 2024 conference, among other things, I did not show impartiality, good integrity and personal behaviour, safe and respectful workplace behaviour.
Employer Party and Persons Named submissions
The Employer Party and Persons Named made the following relevant submissions:
“• During the conference, Commissioner Hunt advised the Applicant that she had already made the decision to grant leave to the employer and named persons to be represented and that the Applicant had the right to seek leave to appeal that decision if he wished to do so.
· Further, at the outset of the conference, Commissioner Hunt advised the parties that she would not be making a decision on the matters unless the Applicant elected to proceed to an arbitration, at which point she would make orders for the filing and service of evidence prior to the arbitration.
· Commissioner Hunt also advised the parties that she would not be granting any orders during the conference, as she would not make a decision on the matters without hearing evidence from the parties.
· Ultimately, no resolution was reached at the conference and the parties agreed to participate in a further conference on 29 July 2024 in a further attempt to resolve the matter without the need for an arbitration.”
Recusal Hearing
I listed the recusal application for Hearing on 29 July 2024 and vacated the planned telephone conference.
Mr Brown attended in person, as did the three Persons Named. After hearing the submissions of the parties, Ms Koelmeyer was granted leave to appear for the Employer Party and Persons Named pursuant to s.596(2)(a) of the Fair Work Act 2009 (the Act). I was satisfied that the recusal application was a complex issue and Ms Koelmeyer’s representation of the relevant parties would make the Hearing more efficient. Ms Koelmeyer appeared by video link.
During the Hearing, Mr Brown confirmed that at the commencement of the telephone conference on 8 July 2024, I informed the parties that I had made a decision on 3 July 2024 in respect of granting leave for the Employer Party and Persons Named to be represented. He confirmed that I had further stated that if he wished to seek leave to appeal that decision, he could do so.
Mr Brown stated during the Hearing that he did not know how he could appeal the decision, or that his submissions the morning of 8 July 2024, prior to the commencement of the conference, might constitute an appeal. Mr Brown confirmed that he never used the word “appeal” during the telephone conference of 8 July 2024.
Mr Brown submitted that during the telephone conference of 8 July 2024, I badgered him in respect of not producing emails yet did not badger the Employer Party. He submitted that I made the conference adversarial by badgering him.
During the Hearing I explained to Mr Brown that emails were not required at the 8 July 2024 conference, nor were they required to be produced at the proposed 29 July 2024 conference. If Mr Brown had sought to have the matter programmed for arbitration, I would have enquired of Mr Brown how many weeks he needed to prepare his evidence and submissions. I would have then enquired of the Employer Party and Persons Named how many weeks they needed to prepare their material, before providing Mr Brown an opportunity to file any reply material he wished to.
I explained to Mr Brown that only then would there be evidence and submissions before the Commission to enable a Hearing into the substantive applications to occur.
Consideration
In UWU v Hot Wok Food Makers Pty Ltd[1] the Full Bench observed the following:
“[11] The principles stated in the High Court decision in Ebner v Official Trustee in Bankruptcy[2] concerning apprehended bias are applicable to Hot Wok’s recusal application. In short, a judge or tribunal member is disqualified if 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. 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.[3] 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.[4] It 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.”[5]
In Johnson v Johnson,[6] the High Court of Australia (Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ) held that the test to be applied is an objective test (citations omitted):
“ [13] Whilst the fictional observer, by reference to whom the test is formulated, is not to be assumed to have a detailed knowledge of the law, or of the character or ability of a particular judge, the reasonableness of any suggested apprehension of bias is to be considered in the context of ordinary judicial practice. The rules and conventions governing such practice are not frozen in time. They develop to take account of the exigencies of modern litigation. At the trial level, modern judges, responding to a need for more active case management, intervene in the conduct of cases to an extent that may surprise a person who came to court expecting a judge to remain, until the moment of pronouncement of judgment, as inscrutable as the Sphinx. In Vakauta v Kelly Brennan, Deane and Gaudron JJ, referring both to trial and appellate proceedings, spoke of "the dialogue between Bench and Bar which is so helpful in the identification of real issues and real problems in a particular case." Judges, at trial or appellate level, who, in exchanges with counsel, express tentative views which reflect a certain tendency of mind, are not on that account alone to be taken to indicate prejudgment. Judges are not expected to wait until the end of a case before they start thinking about the issues, or to sit mute while evidence is advanced and arguments are presented. On the contrary, they will often form tentative opinions on matters in issue, and counsel are usually assisted by hearing those opinions, and being given an opportunity to deal with them.
[14] There was argument in this Court, prompted by Anderson J's explanation of what he intended to communicate, about whether the effect of a statement that might indicate prejudgment can be removed by a later statement which withdraws or qualifies it. Clearly, in some cases it can. So much has been expressly acknowledged in the cases. No doubt some statements, or some behaviour, may produce an ineradicable apprehension of prejudgment. On other occasions, however, a preliminary impression created by what is said or done may be altered by a later statement. It depends upon the circumstances of the particular case. The hypothetical observer is no more entitled to make snap judgments than the person under observation.”
In a recent decision of Johns C in Cairns v Oceaneering Australia Pty Ltd,[7] the Commissioner succinctly described how a fair-minded lay observer would understand the basic features of the Commission’s powers and procedures under the Act and general practices:
“a) the Commission must perform its functions and exercise its powers in a manner that is, among other things, quick, informal and avoids unnecessary technicalities (s.577(b)),
b) the Commission is not bound by the rules of evidence and procedure in relation to a matter before it (s.599),
c) it is common practice for a member of the Commission to express tentative views about questions of fact before them, including by explaining to parties (so that they know what matters they need to focus on) when the member does not understand something, or will need persuasion.
d) the quick resolution of a matter will necessitate the Commission member identifying the real issues and real problems in a particular case.
e) the exchange that happens between the bench and the bar, on the run, in an interlocutory hearing tends to lack the precision that might be expected in written and more well considered correspondence.”
Mr Brown continues to demonstrate consternation with the decision I made on 3 July 2024 to grant leave to the Employer Party and Persons Named to be represented by a lawyer. As explained to Mr Brown in the lead up to the conference on 8 July 2024, and at the conference on 8 July 2024, the decision had been made on 3 July 2024. Mr Brown was invited to seek leave to appeal the decision, if he wished.
It is noted that in his application for recusal made on 25 July 2024, Mr Brown stated that he was “quite shocked” during the telephone conference on 8 July 2024 that I had stated that I had already made up my mind and did not wish to consider the written submissions he had filed in the morning of 8 July 2024. Mr Brown had already saved a document at [9] noting that I had granted representation to the Employer Party. Mr Brown’s recent submissions that he was “quite shocked” cannot be supported when he had titled a pdf document in the way that he did.
Mr Brown objects to my “rejection” of his “well researched July 8 objection to representation”. As explained to Mr Brown on numerous occasions, the decision was made by me on 3 July 2024, and the decision having been made, he was invited to seek leave to appeal the decision if he considered that it was made in error.
Having regard to Mr Brown’s submissions that he was badgered by me and the Employer Party was not, there was no suggestion made by Mr Brown during the telephone conference on 8 July 2024 that he was being badgered to produce documents. Mr Brown was invited by me to propose a solution to the workplace issues he was experiencing with his manager. He nominated a solution; one where he would be given five shifts per week at his current workplace location, and his manager would be moved to another location so that he did not have to work with her. This was considered and rejected by the Employer Party.
Mr Brown was invited by me on 8 July 2024 to consider when he might “press the button on arbitration”, a phrase I often use with applicants in various jurisdictions such as stop bullying applications and dispute matters. Mr Brown did not elect, at the conference of 8 July 2024, to have the matter programmed for arbitration; instead he agreed to participate in a further telephone conference on 29 July 2024.
It is clear that Mr Brown had regard to what I said during the 8 July 2024 conference, as he contacted my chambers on 23 July 2024 to “press the button on arbitration”. He requested that I set dates requiring the parties to submit their material. Clearly, if Mr Brown understood that he could, at his election, make this request, it follows that the Commission was not interested, on 8 July 2024 in requiring parties to produce emails prior to programming the matter for arbitration, nor in preparation for a further conference on 29 July 2024.
In respect of Mr Brown’s assertions that during the 8 July 2024 conference I was adversarial, Mr Brown says this is so because of my “badgering” of him for the production of emails to support his case. I have already determined that there was no call for the production of documents in the conference of 8 July 2024, as is often the case in an initial conference before a Member of the Commission.
There is no evidence before me of “badgering” or of conducting the conference in an adversarial way, when Mr Brown was invited to move the proceedings along as fast or as slow as he wished.
Having regard to Mr Brown’s request on 23 July 2024 to programme the applications for arbitration, a fair-minded lay observer would consider that there was no call for the production of documents at the 8 July 2024 conference, as submitted by Mr Brown, which he asserted leads to apprehended bias or actual bias. Even if I am wrong about that, the second step in Ebner requires an articulation of the logical connection between the matter and the apprehended deviation from the course of deciding the case on its merits.
If the recusal application had not been made, Mr Brown’s request for programming for arbitration would have been met, and only then would Mr Brown be required to produce any evidence he wished to support his applications, in accordance with directions that would be set by me taking into account the parties’ availability. There is no assertion that there was an apprehended deviation from the course of deciding the case on its merits because of anything said by me at the conference on 8 July 2024. Accordingly, the second step in Ebner is not established.
For these reasons, I am not satisfied that, in the circumstances, I should recuse myself from further hearing the substantive stop bullying applications made by Mr Brown. The application for me to recuse myself from further determining the applications is dismissed.
COMMISSIONER
Appearances:
A Brown for himself.
A Koelmeyer and E Tolentino of Workplace Law for the Employer Party and Persons Named.
Hearing details:
2024.
Brisbane.
29 July.
[1] [2022] FWCFB 158.
[2] [2000] HCA 63, 205 CLR 337.
[3] Ibid at [6] per Gleeson CJ, McHugh, Gummow and Hayne JJ.
[4] Ibid at [8] per Gleeson CJ, McHugh, Gummow and Hayne JJ,
[5] CNY17 v Minister for Immigration and Border Protection [2019] HCA 50, 268 CLR 76, 94 ALJR 140, 375 ALR 47 at [21] per Kiefel CJ and Gageler J.
[6] [2000] HCA 48.
[7] [2024] FWC 1912.
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