Peter Hankin v Plumbers Supplies Co-Operative Ltd T/A Plumbers Supplies Co-Op

[2014] FWC 7923

[2014] FWC 7923

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.789FC - Application for an order to stop bullying

Peter Hankin
v
Plumbers Supplies Co-Operative Ltd T/A Plumbers Supplies Co-Op; Ben Ridgeway; Simon Ballingal; Chris Henry; David Power; Grant Crawford; Stephen Wells
(AB2014/30)

COMMISSIONER LEWIN MELBOURNE, 18 NOVEMBER 2014

Application for an FWC order to stop bullying - recusal application by the Applicant on the basis of actual and apprehended bias - recusal application dismissed.

Introduction

[1] This decision relates to an application by Mr Peter Hankin for the Fair Work Commission (the Commission) as presently constituted to recuse itself and stop dealing with his application in this matter. Mr Hankin’s substantive application is for the Commission to make an order to stop bullying, which Mr Hankin alleges he has been exposed to in his employment with Plumbers Supplies Co-Operative Ltd (Plumbers Supplies).

[2] Mr Hankin has filed submissions in support of his application for the recusal. Plumbers Supplies opposes the recusal application and has filed submissions in response.

[3] It is necessary to deal with the application for recusal expeditiously due to the nature of the application, the current state of the proceedings, and the substantive issues involved.

[4] Having read Mr Hankin’s submissions, it is unclear if he is arguing both actual and apprehended bias. In any event, I am unable to discern a basis upon which it could be maintained that I am biased, in an actual or apprehended sense, against Mr Hankin.

Actual bias

[5] In relation to actual bias, I do not know of Mr Hankin outside of these proceedings, other than in terms of a general protections application that was lodged at the same time as the anti-bullying application. The general protections application is presently being held in abeyance pending the outcome of the anti-bullying application. Accordingly, I know nothing about Mr Hankin that could be considered the basis of any actual bias against him or his application. I have had no previous experience of matters before the Commission affecting either Mr Hankin or the various respondents to this application.

[6] I am unable to conceive of any possible interest I would have in the outcome of these proceedings. I have no prejudicial preconceptions about Mr Hankin that would bear upon any decision I would make in this matter and no such alleged preconceptions are identified in the submissions made in support of recusal.

[7] Mr Hankin has said little in the course of the proceedings as his case has been spoken for by his brother, Mr John Hankin, who is a lawyer. Mr John Hankin is a person who may have appeared before me previously. However, I have no recollection of such an appearance or any matter in which Mr John Hankin may have appeared. Moreover, there is no basis identified in the submissions upon which it is said I am actually biased against Mr John Hankin. Accordingly, any potential source of an interest of mine or unfavourable impression of a kind which might give rise to a biased determination does not arise.

[8] To recuse myself on the basis of actual bias, it would be necessary for me to be satisfied, on what is before me, that I have approached this matter with a closed mind or that I have brought an existing state of mind which disables me from undertaking or being willing to undertake a proper evaluation of what is before me in relation to Mr Hankin’s anti-bullying application. 1 An allegation of actual bias must be “distinctly made and clearly proven”.2 I am not satisfied that Mr Hankin has distinctly made and clearly proved that the Commission as presently constituted harbours actual bias against Mr Hankin.

Apprehended bias

[9] The submissions made by Mr Hankin directed to the issue of apprehended bias are very extensive.

[10] In summary terms, Mr Hankin’s submission in support of recusal on grounds of apprehended bias is that the Commission as presently constituted:

• has been inattentive, unsympathetic and disengaged from the proceedings and the merits of the matter: and,



• appears to have prejudged certain issues in relation to its powers to make orders of the kind available under s 789FF of the Act.

[11] Plumbers Supplies’ submissions respond to Mr Hankin’s submissions that the Commission has been inattentive to his application and include a broadly accurate chronology of events following the filing of the application. When the application was filed it was necessary for all of the named respondents to be served and provided with notice of the application and provided with an opportunity to respond to the application. Service was effected by the Commission’s anti-bullying team.

[12] The chronology submitted by Plumbers Supplies of this matter is broadly accurate and is reproduced as follows:

“The matter was commenced by application dated 3 June 2014. The matter was allocated to Commissioner Lewin. Hitherto, the Commissioner has dealt with the matter as follows:

a. requiring the employer and other named respondents to file written responses to the originating application (within 2 weeks of the application);

b. conducting a telephone conference involving the parties (28 July 2014);

c. conducting a face-to-face conciliation (7 August 2014);

d. directing the filing of submissions and evidence by the applicant (25 August 2014);

e. directing the filing of submissions and evidence by the respondents (26 September 2014);

f. directing the filing of submissions and evidence in reply (3 October 2014);

g. conducting a hearing (8 October 2014);

h. directing the employer respondent to file confirmation of a without prejudice proposal made by it and agreed to by the applicant during the hearing (15 October 2014);

i. conducting further mentions of the matter (16, 22 and 31 October 2014); and

j. directing the applicant to file a response to the abovementioned proposal (Provided on 30 October 2014).”

[13] It is worthy of note that no complaint of any kind which would be encompassed in the above chronology was made about the Commission’s procedure in connection with the application by Mr Hankin or raised by Mr Hankin until 30 October 2014, which was subsequent to a mention of the matter on 22 October 2014, which followed a hearing that took place on 8 October 2014.

[14] When the file was first allocated to my chambers it became apparent that the process was not complete and the file had to be returned to the anti-bullying team for the purpose of completion of the service process before the Commission could proceed. The application had been filed on 3 June 2014 but could not be actioned in chambers until 24 June 2014 due to this delay.

[15] Given that Mr Hankin has had the support and assistance of a close relative who is an experienced lawyer throughout the history of the proceedings, one might reasonably wonder how any issue of apprehended bias had been ignored, if indeed such apprehension has been available, until 30 October 2014. This would seem to suggest, contrary to Mr Hankin’s submissions that the alleged apprehended bias arises as a consequence of the mention of the matter on 22 October 2014.

[16] Mr Hankin filed draft orders in relation to the application on 4 August 2014. The draft orders were superseded by amended draft orders on 25 August 2014. Both sets of draft orders are appended to this decision as Attachment A and Attachment B, respectively. It is not necessary or appropriate at this moment to embark on a detailed commentary about questions of jurisdiction and power which may arise in relation to the particular terms of the orders sought, except to say there appear to be a number of such questions.

[17] It is, however, relevant to note that the object and purpose of the statutory provisions under which Mr Hankin’s application is made is the prevention of bullying in the workplace. Some aspects of the draft orders sought by Mr Hankin are focused on the risk of Mr Hankin being exposed to bullying behaviour in the workplace in which he was performing work up until 29 April 2014. Others concern Mr Hankin’s legal rights in the employment relationship with Plumbers Supplies. Mr Hankin has been medically unfit for work since that date and, at the time of this decision, remains unfit for work.

[18] At the hearing on 8 October 2014, Plumbers Supplies, after some interaction with the Commission as presently constituted, without admission, proposed to transfer Mr Hankin from the workplace wherein alleged bullying had occurred (the Cheltenham branch) to another branch (the Preston branch) and to do a number of other things that are consistent with the orders sought by Mr Hankin.

[19] It is convenient to set out some passages of the transcript from the hearing on 8 October 2014, from paragraphs 310 to 350, in this respect:

“MR FORSTER: Yes, I accept that. I have obtained instructions and my instructions are that the employer is prepared to do the following things: the first is it's prepared to provide independent external training to all persons named as employee respondents in the application on the avoidance of bullying. I'm also advised that it's prepared to send Mr Moody and Mr Glover to training in the appropriate means of conducting workplace investigations. I am advised that the Victorian state manager, a person not named in these proceedings, Mr Bill Lees, could perhaps be designated as an appropriate person to manage and monitor facilitation and compliance with those two proposals put forward.

I'm also advised that the employer is prepared, provided that it has some opportunity to consider the logistics of this, to transfer the applicant's employment to another location without any reduction in his current terms and conditions of employment, and that would perhaps be something that can be agreed at the point in time when the applicant is fit to return to work, or if that can be undertaken earlier we will endeavour to do that now that the proposals that are put forward are of course done so without admission of any wrong doing on the part of any person. Certainly we would hope, given what we've heard from the applicant this morning that his desire is to return to work, his desire is to return to a safe location. The commission knows are concerns about whether this is truly his motivation. We think this is about as far as we could go in the circumstances, Commissioner. Thank you.

THE COMMISSIONER: Mr Hankin.

MR J. HANKIN: Apart from the intimation that a transfer might be possible, that's the first I've heard of any of those items.

THE COMMISSIONER: No, I appreciate that.

MR J. HANKIN: In principle the applicant asked for a transfer pretty much within days of his original formal complaint on 28 April. That request for a transfer was summarily dismissed in very early May and on I think it was 23 May or it might have been the 27th the employer directed the applicant to return to work at Cheltenham, which was the branch where most of the more recent events had occurred. That was the trigger which precipitated the current health breakdown of the applicant. The offer of a transfer appears to be the very minimum that the employer could offer.

THE COMMISSIONER: It's an intention, I think; I don't know whether it's an offer. I'm treating it as an outcome of what - I characterise this as an investigation. I don't think the statutory terminology is necessarily confining this to just consideration of an investigation in section 789FF(2)(a) to something like a police investigation or a formal workplace investigation. It seems to me that this whole process is investigative in nature. It's inquisitive in nature. The employer comes to the commission and says, "Well, we're going to do these things," not, "Let's sign off terms of settlement." It's the employer's intention to manage the business and conduct it into the future with these features which they've just related to me.

So my consideration of those matters is compelled by section 789FF(2)(a), if I was to make an order. They would have to be issues which would form the terms of an order, if I was to make an order. So it follows from that then that if you were of the view that they would mitigate, if not eliminate, the risk that a worker will continue to be bullied then it seems to me the power to make the order doesn't exist.

MR J. HANKIN: I've sought in - - -

THE COMMISSIONER: Because you have to be satisfied of that in order for the power to arise. So my thinking is that if an employer says, "Things are changing. They're changing now because we've made a decision they're going to change. We say that these things remove the risk," then you need to be satisfied that they would not in order for the power to arise under section 789FF(1).

MR J. HANKIN: I'm obviously speaking off the top of my head, without having the chance to think deeply about these issues, but a number of matters occur to me. The first is that the offer is made on the express basis of the acts - - -

THE COMMISSIONER: It's a declaration of intent, it's not an offer.

MR J. HANKIN: Okay.

THE COMMISSIONER: It's mischaracterised as an offer.

MR J. HANKIN: Okay, the proposal.

THE COMMISSIONER: These proceedings don't lend themselves to this idea of offer and acceptance because they are not about settlement, they are about the future.

MR J. HANKIN: The proposed transfer, training, et cetera, is made on the basis of an express, as I understand it, declaration that none of the events depicted in the witness statements by the applicant - - -

THE COMMISSIONER: No, it's just non-admission of them.

MR J. HANKIN: The discussion that I had with my friend was somewhat - - -

THE COMMISSIONER: He said "no admission of wrong doing", which in this case means bullying. I'm not required to make any findings.

MR J. HANKIN: I did ask Mr Forster whether the employer intended to rectify the underpayment of wages under the award.

THE COMMISSIONER: With all due respect, that is not an issue for these proceedings.

MR J. HANKIN: It's part of the bullying conduct that the applicant has complained about.

THE COMMISSIONER: Yes, but we're not in the Federal Court here with an accrued jurisdiction - - -

MR J. HANKIN: The commission can't make an order about money.

THE COMMISSIONER: Yes, exactly. So it's something that I just can't reckon with, I just don't have the power.

MR J. HANKIN: If the applicant is to be placed back into a work environment where the commission is satisfied that he is in fact not being paid what this commission says he has to be paid for his work, then - - -

THE COMMISSIONER: That's for the Ombudsman.

MR J. HANKIN: - - - that is a factor that goes to the ability of the commission to be satisfied that the proposed transfer back is an appropriate solution to the issues raised by the applicant.

THE COMMISSIONER: I hear what you have to say about that but it just seems to me that that's a dispute independent of this application and it can be resolved according to law. Being a legally qualified person, you'd know that the applicant, if underpaid according to law, can make a claim in various jurisdictions in relation to that matter, not the least of which is through the Ombudsman or alternatively in the Federal Circuit Court.

MR J. HANKIN: Can we have an adjournment for about an hour?

THE COMMISSIONER: Yes, by all means. I think the situation forms up like this for you: the employer says it's going to do all of this without any admission of wrong doing. The issue for me is, in light of that, am I currently satisfied that there is a risk that the worker will continue to be bullied at work? That's a matter that I have to be satisfied of. As the authorities say, particularly in Coal and Allied, not only do there need to be some material facts which could give rise to the satisfaction but it's a matter for the decision-maker to reach personal satisfaction in relation to the matter. The material facts are the intention of the employer and the other question is my personal satisfaction - my own conviction. So 15 minutes?

MR J. HANKIN: I'd like a bit longer, if I could, sir.

THE COMMISSIONER: 20?

MR J. HANKIN: Half an hour?

THE COMMISSIONER: Half an hour. Could we make it 12.15?

MR J. HANKIN: Yes, sir.

THE COMMISSIONER: Good.

<SHORT ADJOURNMENT [11.49AM]

<RESUMED [12.15PM]

THE COMMISSIONER: Yes, Mr Hankin.

MR J. HANKIN: We've thought pretty deeply and long and hard about the proposal - the suggested course of action from the employer. Subject to his health being given an okay from his general practitioner, the applicant requests that the employer agree to a transfer of his employment site to Hallam. The applicant agrees that anti-bullying training for the named individuals is a very good idea, as also is the proposed training for Mr Moody and for Mr Glover in investigations. Likewise, the proposal for monitoring of the arrangements, for want of a better word, by the Victorian state manager provides at least a beginning to trying to see how events go. The applicant requests that this particular application be simply adjourned. He hopes very much that the transfer to Hallam, the training, et cetera, will result in a restoration of a harmonious working relationship.

The applicant wishes to place on record that he will, as the commission has suggested, pursue other matters in other forums. I think I've just about got it all there, sir.”

[20] The transcript reveals that the Commission was neither inattentive nor disengaged from Mr Hankin’s concerns about the risks of being exposed to bullying behaviour if he became fit for work and resumed working for Plumbers Supplies at its Cheltenham branch. The Cheltenham branch is the location at which much, if not most, of the alleged bullying behaviour is said to have occurred. Rather, a fair minded observer would come to the view that at the hearing Mr Hankin’s concerns were addressed and a timely response from Plumbers Supplies, which sought to address those risks, was facilitated as a result of the interaction between the Commission and Plumbers Supplies.

[21] It is of note that at the hearing on 8 October 2014 Plumbers Supplies sought to strike out Mr Hankin’s application as vexatious. Plumbers Supplies submitted that Mr Hankin’s conduct was vexatious because he demanded a cash settlement in relation to the alleged bullying and harassment and had alluded to a “legal train wreck” if the matter was not settled. It is true that Mr Hankin, through Mr John Hankin, had referred to a cash settlement of several hundred thousand dollars during previous discussions in a conciliation conference and a “legal train wreck” in a letter to the respondent in relation to a proposal for a further conciliation conference. The Commission declined to strike out Mr Hankin’s application.

[22] How an apprehension of bias, inattention or prejudice in relation to Mr Hankin’s application in these circumstances could arise is impossible to fathom having regard to the Commission’s encouragement of Plumbers Supplies to take action to avoid the potential of Mr Hankin returning to the place of work at which it was alleged the bullying behaviour predominantly occurred and the Commission’s reluctance to strike out Mr Hankin’s application.

[23] Rather, in my view, a fair minded lay observer would conclude that the Commission was exploring an expeditious resolution of the matter with an outcome of a voluntary kind, on an even handed basis, between Plumbers Supplies and Mr Hankin, which would at least resolve many of Mr Hankin’s concerns in relation to his application, as reflected in the draft orders, and particularly his concerns about returning to the workplace at which he alleges he was bullied, without the need for admissions on the part of Plumbers Supplies.

[24] The hearing on 8 October 2014 concluded optimistically and uncontroversially through the statements of Mr John Hankin, as reflected in the transcript, reproduced above. No issue of actual or apprehended bias was raised at the hearing.

[25] The purpose of the mention on 22 October 2014 was to confirm the intentions of the Respondent, which had been submitted to the Commission, in writing, as directed, subsequent to the hearing on 8 October 2014. A question of the location to which Mr Hankin would be transferred was explored at the mention. Mr Hankin had sought transfer to the Hallam branch of Plumbers Supplies, however, Plumbers Supplies proposed the Preston branch. Mr Hankin described issues of travel time and cost in relation to the Preston branch at the mention.

[26] At the hearing on 8 October 2014 and the mention on 22 October 2014, the Commission drew attention to the conditions precedent in s 789FF of the Act that there must be a risk of bullying continuing for the Commission’s power to make an order to stop bullying to arise. Mr Hankin considers that the Commission has prejudged that issue. At the mention on 22 October 2014, however, Mr Hankin was invited to make a submission on the proposed transfer to Preston. Rather than prejudging the issue of whether or not there remained a risk of bullying behaviour continuing, the Commission stated that, in light of Plumbers Supplies’ documented intentions, the Commission would need to be satisfied that the relevant risk remained. Accordingly, the Commission invited submissions in relation to both the practical issues of cost and travelling time of the proposed transfer to the Preston branch and the question of the risk of bullying behaviour continuing if the transfer were to occur.

[27] It is to be noted that, given the course the proceedings took on 8 October 2014 in relation to Plumbers Supplies’ stated intentions and Mr Hankin’s apparent acceptance through Mr John Hankin, it had not been necessary (and probably in the circumstances it was not appropriate) to make findings or orders, pending the outcome of the changed situation which would flow from confirmation of Plumbers Supplies’ intentions. No such findings were sought at that time by Mr Hankin. It would have been open at the hearing on 8 October 2014 for Mr Hankin to reject Plumbers Supplies’ intentions and seek to have the hearing continue, to have findings made, and to pursue the amended orders appended to this decision.

[28] At the hearing on 8 October 2014, the Commission indicated that any consideration of the application for the purpose of the power to make an anti-bullying order would by necessity require that Plumbers Supplies’ announced intentions be taken into account at some point and the effect of those proposals on the risks of the alleged bullying continuing be considered.

[29] The circumstances under which Plumbers Supplies announced its intentions had subsequent implications for the hearing and determination of the application and consideration of the draft orders sought. Drawing the attention of the parties to the relevant statutory considerations at the hearing and the mention was unexceptional and would not, in my view, give rise to apprehended bias.

[30] Plumbers Supplies has referred to authority in relation to the way a member of a tribunal or a judicial officer should approach dealing with apprehended bias.

[31] The relevant authority referred to in relation to the test for ostensible or apprehended bias is found in Ebner v The Official Trustee in Bankruptcy [2000] 205 CLR 337 as follows:

“Where, in the absence of any suggestion of actual bias, a question arises as to the independence or impartiality of a judge (or other judicial officer or juror), as here, the governing principle is that, subject to qualifications relating to waiver (which is not presently relevant) or necessity (which may be relevant to the second appeal), a judge 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.”

[32] For the purposes of these reasons, it is sufficient to say that I consider this authority to properly summarise the approach I must take to any consideration of alleged apprehended bias on the part of the Commission as presently constituted.

[33] Of central significance is Mr Hankin’s submission that I have prejudged a substantial issue in relation to his application or at least that it would appear to a reasonable lay observer that I have done so. In order to explain the alleged prejudgement it is necessary to provide some greater explanation of the circumstances in which that prejudgment is alleged.

[34] Mr Hankin’s application was made under s 789FC of the Act, which can be broadly described as the anti-bullying provisions of the Act.

[35] Those provisions create a jurisdiction and confer certain powers upon the Commission.

[36] The issue concerns the powers of the Commission in relation to cases of workplace bullying.

[37] Where the Commission finds that a person has been bullied at work, there is a risk to health and safety, and there is a risk that the bullying may continue, the Commission has powers to make any order to stop the bullying; however, such orders cannot be monetary in nature.

[38] The relevant statutory provisions are set out below:

“789FF FWC may make orders to stop bullying

(1) If:

(a) a worker has made an application under section 789FC; and

(b) the FWC is satisfied that:

(i) the worker has been bullied at work by an individual or a group of individuals; and

(ii) there is a risk that the worker will continue to be bullied at work by the individual or group;

then the FWC may make any order it considers appropriate (other than an order requiring payment of a pecuniary amount) to prevent the worker from being bullied at work by the individual or group.

(2) In considering the terms of an order, the FWC must take into account:

(a) if the FWC is aware of any final or interim outcomes arising out of an investigation into the matter that is being, or has been, undertaken by another person or body—those outcomes; and

(b) if the FWC is aware of any procedure available to the worker to resolve grievances or disputes—that procedure; and

(c) if the FWC is aware of any final or interim outcomes arising out of any procedure available to the worker to resolve grievances or disputes—those outcomes; and

(d) any matters that the FWC considers relevant.”

[39] It will be observed that the power to make an anti-bullying order is conditional upon the Commission being satisfied, among other things, that there is a risk of bullying continuing.

[40] That no doubt will depend upon facts and circumstances. This is so because the employment relationship is ongoing and subject to changing arrangements which will need to be taken into account in relation to the satisfaction required.

[41] At the hearing on 8 October 2014 the respondent employer proposed to make significant changes to the circumstances of the employment, which would have to be taken into account to determine whether, in light of these changes, there was a risk of the bullying continuing.

[42] I made this observation at the hearing. Mr Hankin and his brother made no objection at that time and accepted with, in my view, satisfaction, as expressed at paragraph 350 of the transcript, above, that the employer was proposing to do at least some of the things which were sought in the amended draft orders submitted by Mr Hankin in August 2014.

[43] At the hearing on 8 October 2014 Mr Hankin expressed his wish to be transferred to the Hallam branch. In the event, Plumbers Supplies proposed instead transferring him to the Preston branch, Mr. Hankin objected to the Preston branch on the grounds of travel time and cost. As previously mentioned, I invited submissions on that subject at the mention. Additionally, Mr Hankin also submitted that there remains a risk of the alleged bullying behaviour continuing at the Preston branch of Plumbers Supplies.

[44] At the mention on 16 October 2014, I made a number of observations about the proposal made by Plumbers Supplies to Mr Hankin. The mention of 16 October 2014 was not officially recorded or transcribed by the Commission or its approved service provider. Mr Hankin has included an unofficial and unauthorised transcription of my comments at that conference in his submissions. Mr Hankin and his brother have denied recording the proceedings in response to a question from Plumbers Supplies. Rather, Mr John Hankin submitted that he took shorthand notes of the proceedings, which were no longer available as, at the time of the conference on 16 October 2014, they had “already been shredded”. I note that the transcription offered by Mr Hankin is inaccurate and requires editorial changes. I reproduce from the submissions the transcription, as follows, with the caveats noted and the aforementioned editorial changes, which, in my view, more accurately represents what was said:

“Well thank you, there's a very thorough explanation in your email, and as I say from the Commission’s point of view, I'm inclined to see how this works, and I'd be inclined to take the view that it, where there's a very substantial risk mitigation, and of course as is understood by the parties’ representatives, I would need to be satisfied there is was a risk of the bullying continuing, before any power to make an Order arises, and in light of these steps, I'm not preferably presently so satisfied at about that, therefore, the power is not on foot.”

(errors struck out, amendments underlined)

[45] The explanation referred to is the email of Plumbers Supplies confirming the intention expressed at the hearing of 8 October 2014.

[46] I stress the words “presently so satisfied”, above. For the reasons explained above, no finding has been made that Mr Hankin was bullied prior to him becoming unfit for work on 29 April 2014. It is clear under the Act that the power for the Commission to intervene and order Plumbers Supplies not to transfer Mr Hankin to the Preston branch, in the event Mr Hankin were in the future fit for work, only arises if the Commission is satisfied that Mr Hankin has been bullied at work and would be at risk of bullying continuing at the Preston branch.

[47] On what is before me, I am unable to conclude that a fair minded lay observer might consider that the Commission will not bring an impartial mind to the hearing and determination of Mr Hankin’s application arising from my observations concerning the operation of the relevant statutory provisions. 3

Alleged improper communication

[48] Mr Hankin has submitted that I may have had improper communication with Ms Stuckey-Clarke, a legal representative of Plumbers Supplies.

[49] Mr Hankin filed submissions in relation to a witness statement filed by one of the respondents in the matter. Mr Hankin drew attention to anomalous aspects of the circumstances of the filing of the witness statement in question. The submission raised what may have been matters of professional misconduct in the preparation and filing of the statement.

[50] I considered the matters raised by Mr Hankin to be of a serious nature.

[51] I did not take the matter any further than to put Ms Stuckey-Clarke on notice of my concerns in relation to this submission and to ensure that she was on notice that, as it seemed she was involved in the preparation and filing of the statement, she may be required to address Mr Hankin’s submissions.

[52] In my view, these circumstances do not give rise to an apprehension of bias on my part. Rather, in my view, the contrary is the case.

[53] Mr Hankin rightly observes in his submissions that prior to this communication with Ms Stuckey-Clarke I previously sought the agreement of the parties for the Commission to communicate individually and separately with the applicant and the respondents in relation to the application. The communication with Ms Stuckey-Clarke followed the agreement of all of the parties.

[54] Mr Hankin submitted that I have not dealt with his concerns in relation to the witness statement in question. This is true as the proceedings to this stage have not required those matters to be dealt with. The proceedings have been focused on steps to address the continuing risk of bullying, as alleged by Mr Hankin. Ms Stuckey-Clarke remains on notice of the submissions of Mr Hankin and the concerns of the Commission in relation to the circumstances arising during the preparation and filing of the statement concerned.

[55] Mr Hankin has been aware of the fact of the discussions having occurring between the Commission and Ms Stuckey-Clarke since 16 July 2014 and has not until 30 October 2014 made a complaint about the fact of those discussions or sought information about the content of those discussions.

[56] In my view, none of these considerations would give rise to an apprehension of bias on the part of a reasonable lay observer when considered objectively. Putting Ms Stuckey-Clarke on notice of the Commission’s concerns in light of the issue raised by Mr Hankin, given the prior permission of the parties for individual and separate communication, was in all the circumstances, an act of attention by the Commission to the concerns of Mr Hankin about the preparation of witness statements in the matter.

Permission to appear

[57] Mr Hankin complained that the Commission granted Plumbers Supplies permission to be represented by a lawyer and for the other respondents to be likewise represented by the same lawyer.

[58] It appeared to me that given the complexity of the matter that the proceedings and the hearing would be conducted more efficiently if that permission were granted.

[59] I cannot see how the granting of such permission could lead to an apprehension that I have prejudged a substantive issue to be dealt with in Mr Hankin’s application. The decision is procedural and does not prejudice Mr Hankin’s opportunity for his case to be heard. Mr Hankin is represented by an experienced lawyer capable of putting the case on his behalf, who would not be disadvantaged by meeting a lawyer representing the respondents’ case. Mr Hankin had the right to appeal against the decision. No appeal was made.

Order to produce

[60] A request for an order to produce was filed by Mr Hankin with the anti-bullying and general protections applications he has made to the Commission. No further request was made in pursuit of either order to produce between the making the original applications on 3 June 2014 and the making of the application for recusal on 30 October 2014. The matter was not revisited at the hearing on 8 October 2014, or prior to that hearing.

[61] It may be said that the Commission did not act on the request for the order to produce, however, it may also be said that too was the case for Mr Hankin and his representative, Mr John Hankin, in not pressing the request between the filing of the request for the order to produce and 30 October 2014.

[62] These circumstances, looked at objectively, do not suggest a prejudiced state of mind. Rather, it seems the matter was the subject of inactivity on the part of the Commission, Mr Hankin and Mr John Hankin — and no more than that.

[63] The request for an order to produce remains on foot and can be pursued by Mr Hankin as the Commission has neither refused nor made the order to produce or given any indication that it will not issue the order. Whether the order to produce should now be issued can be considered without any prejudgment by the Commission, having regard to the circumstances as they currently apply.

Other matters

[64] Mr Hankin submitted that the Commission has been inattentive to certain aspects of his case. These include issues concerning: the payment of superannuation contributions by Plumbers Supplies to Mr Hankin’s fund of choice; failure to comply with the terms and conditions of industrial awards concerning the appropriate level of remuneration payable by Plumbers Supplies to Mr Hankin; and, failure to pay a promised wage increase.

[65] The Commission has not been inattentive to these matters, however, the issues raise questions concerning what will be properly characterised as alleged bullying and in respect of which remedies would seem to involve monetary considerations which may be beyond the power of the Commission to order.

[66] Deciding what Mr Hankin’s entitlements are under an industrial award is a highly problematic aspect of the order sought by Mr Hankin in respect of which it is true that the Commission has been reticent. Such reticence, however, does not evidence prejudgment or a biased mind.

[67] On the subject of superannuation contributions, the issue was the fund to which Mr Hankin elected to have contributions paid to on his behalf. The Commission’s statement on the record of the proceedings acknowledged the legitimacy of Mr Hankin’s claim that the superannuation contributions should be paid according to his choice. 4 It is difficult to see this statement as evidence of a prejudgment of Mr Hankin’s claim against his interests. However, the Commission did raise the issue of the connection between this aspect of the matter and conduct which could be characterised as bullying behaviour and invited Mr Hankin to provide evidence upon which that connection may be drawn. Once again, how this could be construed as a prejudgment of Mr Hankin’s case is very difficult to see.

Conclusion

[68] For the reasons above, I am not satisfied that I should or can recuse myself from continuing to deal with this matter. To facilitate the further conduct of the proceedings the application by Mr Hankin that I recuse myself is dismissed.

COMMISSIONER

Attachment A:

Attachment B:

 1   Dahler v Australian Capital Territory [2014] FCA 946 at [42] per Katzmann J.

 2 Ibid, para [43].

 3   Re Polites; Ex parte Hoyts Corporation Pty Ltd (1991) 173 CLR 78, 91-92.

 4   Transcript of hearing, 8 October 2014 at PN204.

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