Mr Peter Hamhougias v Linda Thorley, Jerome Jordan, Ian Burge, DPG Services Pty Ltd T/A Opal HealthCare
[2022] FWC 2938
•25 NOVEMBER 2022
| [2022] FWC 2938 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.789FC - Application for an order to stop bullying
Mr Peter Hamhougias
v
Linda Thorley, Jerome Jordan, Ian Burge, DPG Services Pty Ltd T/A Opal HealthCare
(SO2022/433)
| COMMISSIONER WILSON | MELBOURNE, 25 NOVEMBER 2022 |
Application for an FWC order to stop bullying- Application for member to no longer deal with matter for reason of apprehended bias - Application refused.
INTRODUCTION
On 30 August 2022, Mr Peter Hamhougias (the Applicant) filed an application under s.789FC of the Fair Work Act 2009 (the Act) seeking an order to stop bullying in accordance with Part 6–4B of the Act. In his application, Mr Hamhougias alleged he had been bullied by a number of other staff working at Mornington Bay Community Centre (Mornington Bay) which is operated by DPG Services Pty Ltd T/A Opal HealthCare (the Employer). The people named by Mr Hamhougias as having bullied him while at work are Ms Linda Thorley (Care Manager), Mr Jerome Jordan (Regional General Manager), and Mr Ian Burge (Chief Operating Officer), collectively referred to as the Persons Named.
This decision deals with a request made by Mr Hamhougias that I recuse myself from dealing with his bullying application. Mr Hamhougias’ request was made after two conciliation conferences on the subject of his application, on 20 September and 13 October 2022, and after directions were issued on 21 October 2022, at Mr Hamhougias’ request, for the hearing and determination of his matter. The hearing directions were paused on 2 November 2022 until such time as the recusal Application was determined.
Directions regarding the Recusal Application were issued on 2 November 2022. The parties were advised that any submissions regarding the recusal application were to be made prior to 12PM 8 November 2022. No party filed any submissions or documents pertinent to the Recusal Application. The application was the subject of a hearing convened by me on 10 November 2022 at 10AM at which Mr Hamhougias and each of the Persons Named appeared and represented themselves.
For the reasons outlined below, Mr Hamhougias’ request that I recuse myself from dealing with his application for an order to stop bullying is refused.
RELEVANT PRINCIPLES AND LEGISLATION
Procedurally it is incumbent on a Member of the Commission, on receiving an application such as the one made by the Appellant, to hear the application and consider whether there are grounds to recuse himself or herself from dealing with the matter.[1] The principles associated with determination of applications for a member to no longer deal with a matter for reason of apprehended bias are well-established and have recently been summarised succinctly by the Full Bench in Woodside Energy Ltd v The Australian Workers’ Union,
“[38] The applicable principles concerning apprehended bias are as stated in the High Court decision in Ebner v Official Trustee in Bankruptcy.[2] In summary, a judge or tribunal member is disqualified if a fair-minded lay observer might reasonably apprehend that they might not bring an impartial mind to the resolution of the question they are 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; and second, 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]
[39] Some additional propositions are relevant to this appeal. First, disqualification on the ground of apprehended bias must be “firmly established”,[6] and a finding of apprehended bias is not to be reached lightly.[7] Second, an apprehension that an issue may be decided adversely to a party does not constitute an apprehension that the issue might be determined other than impartially.[8] Third, where apprehended bias is asserted on the basis of a previous expression of opinion on an issue by the decision-maker, consideration of whether the “logical connection” required by the second step identified in Ebner exists will require an analysis of the role and importance of that issue in the matter to be determined.[9] Finally, where an apprehension of bias is said to arise by reason of prejudgment, the following principles stated by the Federal Court Full Court in Cabcharge Australia Ltd v Australian Competition and Consumer Commission[10] apply:
“The test for apprehended bias is the same wherever it arises, although the context in which it falls to be applied will clearly affect how the test is applied. One particular occasion of apprehended bias is where it is said, as Cabcharge had alleged here, that the judge has relevantly prejudged matters in controversy. In this context, disqualifying bias results in a state of mind that is not open to persuasion. That is, in this species of apprehended bias, “[t]he state of mind described as bias in the form of prejudgment is one so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented”: see Minister for Immigration andMulticultural Affairs v Jia Legeng (2001) 205 CLR 507 … at 531-2 [71]-[72] per Gleeson CJ and Gummow J. That is, in such a case as the present, it must be firmly established that a reasonable observer might conclude that the decision-maker might not bring to his or her task an impartial mind by reason of prejudgment, in the sense that the decision-maker might be so committed to a conclusion as to be incapable of persuasion to a different view: see Re JRL; Ex parte CJL (1986) 161 CLR 342 … at 352 per Mason J.”[11] (references in original)
The hypothetical fair-minded lay observer is not conceived of as a lawyer, but a member of the public served by the courts or, in this case, the Commission.[12]
CONSIDERATION
Having considered the principles associated to determination of applications of this sort, I turn now to a consideration of each of the grounds advanced by Mr Hamhougias.
Before doing so it is to be noted that the Recusal Application came after the conclusion of conciliation and before arbitration had taken place. In accordance with usual practice the conciliations were not recorded by the Commission and participants were advised that all parts of conciliation were private and confidential and without prejudice to the rights they have if the matter proceeded to a hearing. Those attending were also directed to turn off and not use for the entire duration of the conference any recording devices they may have. Also, in accordance with current usual practice, conciliation was conducted through Microsoft Teams and consisted both of plenary and private sessions between me and other parties. Some, but not all, things discussed in a private session with one party were communicated to the other attendees.
Grounds for the Recusal Application
Mr Hamhougias’ Recusal Application advances four grounds for his request:
Observations I made to him about Ms Thorley whom I had met for the first time in the second conciliation and spoke to privately before speaking privately with Mr Hamhougias “that she was a pleasant person”;
An opinion I expressed that “not only do you dislike the term 'bullying', rather that you intensely dislike the term ‘bullying’”;
A comment I made to Mr Hamhougias to the effect that “that if [he] was “looking for a Royal Commission, [he] won’t get one””;
A comment I made to Mr Burge at the conclusion of the second conciliation to the effect of “I tried, Mr Burge”.
Mr Hamhougias concludes that these matters leave him with “a genuine sense of concern with your perceptions, attitude, judgements, and pre-conceived ideas”.
As referred to above, the Recusal Application follows extensive conciliation conducted on two occasions and spanning almost four hours in total. There were at least four plenary sessions across the two conciliations. I spoke separately with Mr Hamhougias on both occasions and did the same with the Persons Named, but as a collective.
In relation to his first ground Mr Hamhougias argues that I commented Ms Thorley “was a pleasant person” and that he found such comment to be “weird”; “Almost like, 'how could this pleasant person be a bully'. I wouldn't expect anything less from someone who is being spoken to by a Commissioner in a stop bullying case. Of course they would come across as pleasant”.
The wider context to such things as said by me to Mr Hamhougias about Ms Thorley was that she had not attended the first conciliation and I specifically requested she attend the second conciliation. Before speaking privately with Mr Hamhougias in the second conciliation I first spoke with Ms Thorley and the other Persons Named. I relayed to Mr Hamhougias that Ms Thorley spoke warmly of him, including about his work, and said things to the effect that she held no animosity against him and would be able to work constructively with him in the future.
Two elements of context require consideration at this point. First, and notwithstanding what Mr Hamhougias has to say, it is relatively common for one party in a bullying matter to express strong and unflattering views about another, and it is constructive for the purposes of conciliation when a person alleged to have undertaken bullying conduct does not hold such views and is instead relatively warm to the person making the allegations. Such fact is one to be remarked on in the course of conciliation, if only to see where it may lead. If two protagonists have no ongoing difficulty with each other, then they may reasonably be asked to find a way to work constructively together. Second, is the fact that the purpose of conciliation is to endeavour to amicably resolve the parties’ differences through agreement about how constructive working relationships could be re-established.
A comment to one party in private session that another seemed pleasant and held no animosity to the first would not reasonably be seen by the fair-minded lay observer as evincing any finding or predetermination; at its highest it would be seen for what it was – a comment designed to elicit a response or provoke a thought on a confidential and without prejudice pathway. The hypothetical observer would have heard what was said in the private conference with Ms Thorley and then listened to the words spoken in the private conference with Mr Hamhougias and observed their mode of communication and realised it was merely a bridging comment and that no finding was expressed. The same fair-minded lay observer, being presumed to have a basic understanding of the Commission’s processes and procedures would be aware that one of the purposes of conciliation is for all concerned to speak frankly; to discuss what can or cannot be done from the perspective of each and for the presiding Member to endeavour to move the parties’ position over time by asking them to consider not only their own perspective but those of the other people involved.
A fair-minded lay observer would likely see the overall communication about Ms Thorley as both innocuous, and a prelude for the lengthier discussion which then ensued about whether and how a working relationship between the two could be restored, notwithstanding the Applicant’s views of her. They would not see any logical connection between the comment and any likely departure from determination of the application on its merits. Discussion of all aspects of a claim to all parties are routine in conciliation and Mr Hamhougias has not drawn a connection between the observation and the potential for deviation in a hearing.
The comments about the use of the term “bullying” and those about a Royal Commission may be taken together.
Mr Hamhougias’ anti-bullying application stems from a report he made to Ms Thorley on 17 March 2020 about the care given to a resident of Mornington Bay Care Community, with his application to the Commission putting forward that the “incident was a gross dereliction of duty, which left the resident inconsolable”. He claims as well to have been restricted about the communications he may have with several of the Persons Named and others, in respect of not only that incident, but other matters of care about which he is concerned.
Mr Hamhougias alleges Ms Thorley failed to respond to his report and correspondence on the subject. Mr Jordon is alleged to have said that he would investigate but failed to provide advice to Mr Hamhougias about what occurred. Mr Hamhougias alleges he was instructed not to correspond or engage with the Care Manager. That instruction is alleged to have been repeated by Mr Burge. Mr Hamhougias sets out that “For well over two years, my voice, my concerns, my Duty of Care, my feelings have been ignored, dismissed, supressed, and railroaded”.
The material before the Commission to date is necessarily limited because the matter has not progressed beyond conciliation, however connected with Mr Hamhougias’ concern that his concerns had been ignored are several emails to Mr Burge and Mr Jordan which appear to express the Applicant’s view that he is concerned not only about his interactions with the Persons Named about his initial complaint and subsequent work related events, but also wider issues associated with standards of care at Mornington Bay Care Community. In this regard, not long before commencing his application to the Commission, Mr Hamhougias asserted several matters to Mr Burge and Mr Jordan, potentially wider than matters that may be within the bullying definition:
To Mr Burge,
“My job, my Duty of Care, is being hampered at every single turn and/or hurdle”;
Mr Jordon and Ms Thorley fully know his concerns, but they have refused to address them;
“Why are my words, my emails, my thoughts, my passion, my Duty of Care, my holding to account, my absolute love and adoration of the residents and their rights, and my own rights as an employee, being blatantly ignored ?”
“Any direct question in relation to Opal's dereliction of duty goes unanswered, ignored, and dismissed”;
To Mr Burge and Mr Jordan,
“Seems to me like quite a few Leaders at Opal are 'busy', when it comes to responding to concerns raised by their employees.
Have you, or Karenne Hall, or Linda Thorley read Opal's 'Independent' review into clinical leadership, customer service and/or complaints
management ?
Hmmmmmmmmm.........”
Matters such as these, as well as matters discussed in conciliation, reasonably suggest the Applicant has a very broad range of concerns which he wishes to discuss and potentially have aired and resolved in arbitration before the Commission. Given that the matter has not progressed beyond the conciliation stage it is not clear the extent to which Mr Hamhougias’ will seek to raise matters of care and the capability of management, however the documents filed so far at least raise the possibility this may be sought.
Discussions in conciliation with Mr Hamhougias show him to be concerned about numerous matters associated with the workplace, some of which may well be beyond the scope of an anti-bullying application. Things said by him in the conciliation conferences, as well as statements made in documents he has provided to the Commission, suggest he does not believe Mornington Bay is being well run. He expressed views which suggest people within managerial or supervisory positions were not especially caring, or at least not to the standard he would expect. He wanted them and Opal HealthCare to be “accountable”. His view of “accountability” seemed to extend to a desire the Commission hear in some detail his views about Mornington Bay's overall management and operations, even though there is a strong possibility that some, if not many, of those matters extended beyond the matters encompassed by an anti-bullying application. Discussion with Mr Hamhougias suggests he seeks scrutiny of many matters, including matters of caregiving, and for findings to be made about those things.
While accepting that the actual scale of Mr Hamhougias case and relief to be sought during arbitration is not entirely clear at this time, since the application has not progressed beyond the conciliation stages, the fair-minded lay observer would likely apprehend from the breadth of things referred to by Mr Hamhougias that he sought help on those things, but also that it would be reasonable for the Commission in conciliation phase to endeavour to temper his expectations.
The explanation to Mr Hamhougias about the word “bullying” was intended to relay that the term can sometimes be used with an associated implication of guilt or as a pejorative. The discussion in private session conciliation drew attention to Mr Hamhougias’ aims both in conciliation and arbitration which seemed to be that guilt and blame be assigned, and attempted to moderate those expectations with the hope that such may lead to an agreed conclusion for his application. Explanation was attempted to the effect that not everything found to have occurred may be “bullying” as defined, and any findings made by the Commission might range through a scale, depending on the evidence, from reasonable management action, which was not bullying, to inappropriate conduct, to more serious misconduct, either of which may be bullying as defined. If bullying was found to have occurred the Commission’s intervention would be limited in the manner set out in the legislation to orders to prevent a repetition, all within the context of an ongoing employment relationship for all parties. The discussion invited consideration that even though conduct may be labelled as bullying, such findings may not accord with expectations of guilt and punishment, to the extent he held those expectations.
Similarly, the comment that these proceedings were not a “Royal Commission” with broad terms of reference examining everything that was wrong in the workplace was an endeavour to have the Applicant see that not all claims he made about the workplace would be examined. There was no suggestion made that Mr Hamhougias workplace conduct related complaints would not be heard, noting that he does not argue such, or that he believes the comment would lead to his bullying complaints not being heard and determined in accordance with the evidence.
A fair-minded lay observer would not consider such things as were said to Mr Hamhougias as either logically connected with an inability for me to hear and determine the case as required by the Act, in accordance with the evidence, or as amounting to a prejudice against him; instead, they would observe the Commission’s usual conciliation processes as being applied. With the Applicant apparently firmly of the mind that the only acceptable outcome to the proceedings were findings of bullying against each of the Persons Named, since that would deliver accountability, the observer would notice the conciliation process moved to checking Mr Hamhougias’ expectations. That process included discussion of the uncontroversial facts that findings of bullying may or may not be made; that such findings may lead to orders, however such orders as may be made would be within the context of an ongoing employment relationship. It also included discussion of the fact that the complaints to be considered and determined would be those within the definition of “bullied at work”, namely of repeated unreasonable behaviour while at work with a risk to health and safety, and not of standards of care and management generally should they not fall within the statutory definition.
The fair-minded lay observer would see that the important work to be done in the latter stages of the second conciliation was to undertake a tempering of the Applicant’s expectations, and when that failed, to list the matter for hearing, as was done. It is unlikely a fair-minded lay observer would apprehend any bias in relation to the discourse that has led to the second and third grounds of Mr Hamhougias’ Recusal Application. Mr Hamhougias has not drawn in respect of these two grounds any logical connection between the observations and the potential for deviation in a hearing from determination of his application on the merits.
The fourth ground upon which Mr Hamhougias relies for his Recusal Application is a comment made by me in the final plenary session shortly before the second conciliation ended that “I tried, Mr Burge”. The comment to Mr Burge came about as a result of matters discussed in the final two private sessions in the second conciliation. In the penultimate private session, the Persons Named were advised that Mr Hamhougias did not have a proposal for resolution to put to them and that as a consequence his request for his application to be listed for hearing would be acceded to. Mr Burge then requested a further proposal be relayed by me to Mr Hamhougias in order to avoid the need for hearing.
Mr Burge’s proposition was conveyed to the Applicant in the final private session in which Mr Hamhougias declined the proposition. The Persons Named were then returned to the conference along with Mr Hamhougias and were advised that the Applicant was not disposed to further consider what had been suggested, after which the words Mr Hamhougias refers to about were spoken.
The fair-minded lay observer would not see the comment for anything other than what it was; a report-back from a final private session followed by a comment to one of the Person’s Named that their proposal for resolution had been rejected by the Applicant, and that the Applicant’s desire to proceed to a hearing had been granted. The fair-minded lay observer would not see apprehended bias from this exchange. They would see no logical connection between the comment and an inability for me to determine Mr Hamhougias’ case other than in accordance with the merits of his case.
Mr Hamhougias’ expresses concerns about things said to him in the course of conciliation, and then only either in the plenary sessions or the private sessions held with him; that is, he has no knowledge of what may have been discussed in the private sessions held with the Persons Named (save as reported by me to him in the conciliations or in this decision).
Mr Hamhougias’ case in full is yet to be disclosed to the Commission, and so it is impossible at this time to be certain either about the grounds upon which he will proceed, the relief he seeks, the witnesses he will bring forward, or the findings he will invite the Commission to make. The matters about which he is concerned at this time would not reveal to the hypothetical fair-minded lay observer anything about the Commission’s state of mind. Even had that observer witnessed the whole of the approximately four hours of conciliation, sitting in on all plenary and private sessions, it is doubtful they could reliably predict the outcome of a hearing, other than that it would rigorously test for bullying conduct the complaints that are within the Commission’s powers to receive and act on and that it would decline to act on an invitation to consider and determine those things outside of the remit of Part 6 – 4B. In this regard Mr Hamhougias fails to establish an apprehension of bias arising from any of the grounds he has brought forward, let alone an apprehension in respect of prejudgement that I might be so committed to a conclusion as to be incapable of persuasion to a different view. He shows no logical connection between the comment and an inability for me to determine his case other than in accordance with the merits of his case.
For the reasons set out herein, Mr Hamhougias’ Recusal Application is dismissed.
Having set aside the directions for hearing and the hearing dates of Mr Hamhougias anti-bullying application it will be necessary to reset the directions and hearing dates. The parties will be contacted by my Associate in the near future to make suitable arrangements for a hearing of the substantive application.
COMMISSIONER
Appearances:
Mr P Hamhougias for the Applicant
Mr I Burge for the Respondent
Hearing details:
2022.
Melbourne (by Video):
10 November.
Printed by authority of the Commonwealth Government Printer
<PR747641>
[1] Inna Grabovsky v United Protestant Association of NSW Ltd T/A UPA[2019] FWCFB 7311, [30].
[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 at [21] per Kiefel CJ and Gageler J
[6] Re JRL; Ex parte CJL [1986] HCA 39, 161 CLR 342 at 352 per Mason J, 360 per Wilson J
[7] CNY17 v Minister for Immigration and Border Protection [2019] HCA 50, 268 CLR 76 at [56] per Nettle and Gordon JJ
[8] Re JRL; Ex parte CJL [1986] HCA 39, 161 CLR 342 at 352 per Mason J
[9] British American Tobacco Australia Ltd v Peter Gordon and Anor [2007] NSWSC 109 at [97]
[10] [2010] FCAFC 111 at [25]
[11] [2022] FWCFB 192.
[12] Charisteas v Charisteas [2021] HCA 29, [21].
Printed by authority of the Commonwealth Government Printer
<PR747641>
0
9
0