Phung

Case •

[2024] FWC 2823

•

10 OCTOBER 2024
[2024] FWC 2823

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

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

Phung

(AB2024/36; AB2024/574)

COMMISSIONER MCKINNON

SYDNEY, 10 OCTOBER 2024

Application for an order to stop bullying at work – second recusal application

  1. On 5 February 2024, Ms Ngoc Minh (Helen) Phung applied for orders to stop bullying under s.789FC of the Fair Work Act 2009 (the Act) (AB2024/36) against two individuals with whom she works as an employee of Link MS Services Pty Limited (Link) (the first application). On 2 August 2024 (but completed on 2 September 2024), Ms Phung applied again for orders to stop bullying at work against the same two individuals and four others who are either employed by Link MS Services Pty Limited or MUFG Pension and Market Services Holdings Limited (MUFG) or a related entity (AB2024/574) (“the second application”).

  1. On 16 September 2024, Ms Phung asked me to recuse myself from dealing further with the first and second applications (“the first recusal application”). The first recusal application was dismissed on 26 September 2024[1] (“the first recusal decision”).

  1. At 9.43am on 9 October 2024, Ms Phung asked again for my recusal in the context of her filing an appeal (the second recusal application). I dismissed the second recusal application at the commencement of hearing of the first and second applications on 9 October 2024. These are my reasons for dismissing the second recusal application.

The recusal application

  1. The grounds for the second recusal application are summarised below, so far as they appear to relate to my conduct of the proceedings:

  1. Abrupt end of the hearing on 24 September 2024.
  2. Unjust removal of her advocate from the “courtroom” on 24 September 2024.
  3. Disadvantage due to self-representation and language barriers.
  4. Status of Mr Paul Almond, legal representative for the respondents, and failure to recognise the correct identity of the employer of Ms Phung and the individual respondents.
  5. Not requiring the respondents to file written responses or submissions.
  6. Rushing the decision for, and unfairly pushing the first and second applications to, an urgent hearing on 9 October 2024.
  7. Dealing with the first and second applications together.
  8. Preventing Ms Phung from presenting her statements and evidence during the hearing on 24 September 2024.
  9. Losing my composure, directing my attention to Ms Phung’s advocate and blocking her from presenting her case.
  10. Forcing Ms Phung to attend the hearing on 24 September 2024 against her doctor’s instructions.
  11. Undue influence from the respondent’s legal representative.
  12. Failing to intervene against the escalated bullying from Ms Lisa Broadhead, one of the named respondents in the second application.
  13. Being inconsiderate, cruel and demonstrating a disregard for human rights and Ms Phung’s rights.
  14. Casual interactions with the respondents.
  15. Improper conduct by my Associate cleaning up in the “courtroom” at the end of the hearing on 24 September 2024 and sending a copy of the Digital Court Book to Ms Phung from her personal work email address.
  16. Sending 33 emails to Ms Phung in less than 3 months.
  17. Refusing to accept her medical certificate as a reason to adjourn the hearing on 9 October 2024.
  18. Unspecified “possible outside influences”.

  1. Grounds 5, 7 and 12 were considered and determined in the first recusal decision. To the extent that they involve matters under challenge, they are matters properly for the appeal. The same can be said of ground 11 so far as it appears to relate to the Mention on 5 September 2024 and the directions issued on 13 September 2024. Ground 17 relates to one or more procedural decisions and falls for consideration in the appeal. I deal with the remainder in turn.

Grounds 1, 2, 3, 4, 8, 9, 10 and 13 (conduct of the hearing on 24 September 2024)

  1. The hearing on 24 September 2024 came to an abrupt end after Ms Phung decided to leave despite my repeated requests for her to remain. As to the removal of her “advocate” from the hearing room, Ms Phung refers to her sister, Ms Hana Phung. Over the course of the one‑hour hearing, I asked more than 10 times for Ms Hana Phung not to talk, after more than 25 unprompted interruptions and the surprise attempt to play a pre-recorded submission on a laptop computer as the hearing was underway. Ms Hana Phung was warned that further interruptions would result in her being asked to leave the hearing room. The warning was repeated to Ms Phung. When Ms Hana Phung again interrupted the proceeding, she was asked to go into the adjoining conference room. Ms Hana Phung did not cooperate with the request despite the intervention from security personnel. She then decided to leave the premises and Ms Phung agreed with this decision, ultimately stating that “we can’t continue today” before leaving the premises.

  1. I agree that Ms Phung was prevented from presenting statements and evidence, but only about the merits of her case. As explained to Ms Phung at the time, the hearing on 24 September 2024 was not about whether she had been bullied at work but about whether I should recuse myself. On that issue, I repeatedly invited Ms Phung to say anything she wished to say.

  1. I do not accept that I lost my composure during the hearing on 24 September 2024. I did express that I had become “a little frustrated” (transcript at PN421) due to the continual interruption of proceedings by Ms Hana Phung, including the playing of an unexpected, pre-recorded submission and the repeated conduct of Ms Phung and Ms Hana Phung in not cooperating with my directions, answering my questions, or listening to what was being said. I stated firmly to Ms Phung that I would not continue to allow my requests to be disrespected and in doing so, I spoke with a louder voice to ensure that she could hear me over her own voice, as she was speaking while moving around at the back of the hearing room.

  1. The submission that Ms Phung was forced to attend the hearing on 24 September 2024 against her doctor’s instructions cannot be accepted. There was then, and there remains, no medical evidence that Ms Phung has been advised by her doctor not to attend or participate in Commission proceedings. The only reason for the hearing on 24 September 2024 was Ms Phung’s recusal application. The hearing was an opportunity for Ms Phung to be heard. It was originally listed for 20 September 2024 by video using Microsoft Teams, but was adjourned for 4 days and relisted in person at the request of Ms Phung to allow her more time to prepare and facilitate her participation in her preferred format.

  1. Ms Phung asserts disadvantage due to self-representation and language barriers. It is not clear why these are relevant to my perceived impartiality or otherwise in the case. In late April and early May 2024, the Commission’s Workplace Advice Service was made available to Ms Phung. Since the matter has been in my Chambers, Ms Phung has not sought to be represented by a lawyer or paid agent. In relation to the asserted language barrier, forms filed to commence the first and second applications ask whether the applicant needs an interpreter or any other special assistance. In each case, the answer given by Ms Phung was “No”. Further, I asked Ms Phung during the hearing on 24 September 2024 if she understood me and if she had any trouble understanding the things I was saying. The answers were “Yes” and “No” respectively. I had no difficulty understanding the words that Ms Phung was using, and I have read and understood the comprehensive written submissions she has made in each case.

  1. Ms Phung submits that Mr Almond is not a valid representative of MUFG. She separately asserts that both she and each of the individual respondents are employed by MUFG. There is no evidence to support the first contention and I accept Mr Almond’s submission to the contrary. As to the second, the question of who employs each person affected by the first and second applications is not yet necessary to resolve. It will likely form part of my consideration of the merits of the case.

  1. The assertion that I have been inconsiderate and cruel and demonstrated a disregard for both her rights and human rights is not supported by any detail. A fair reading of the transcripts in the case tells against it. The Commission has a statutory duty to deal with cases before it in a timely manner, and to act fairly in relation to all of the parties in a case. After a lengthy period of ultimately unsuccessful alternative dispute resolution, the time has come for the first and second applications to be considered on their merits and determined to finality. This is in the interests of all parties. I accept that progressing to hearing is proving challenging for Ms Phung, but it is not in the interests of justice for the matters to be continually adjourned for reasons unsupported by medical or other evidence.

Ground 6 (timetable for the hearing on 9 October 2024)

  1. Ms Phung submits that I made a rushed decision to list the first and second applications for an urgent hearing on 9 October 2024. The hearing date was set by directions issued on 17 July 2024, before Ms Phung made the second application. The directions of 17 July 2024 also required Ms Phung to file her materials in support of the first application by 14 August 2024. Ms Phung did not comply with this direction. She continued to file materials on and after 15 August 2024 and then made the second application on 2 September 2024. Subsequent events are detailed in the first recusal decision, including that Ms Phung has now filed comprehensive written submissions in support of both the first and second applications, together with supporting evidence as she has seen fit.

Grounds 14 and 18 (Interaction with Mr Almond)

  1. Ms Phung submits that she witnessed familiar and friendly but unprofessional interaction between myself and Mr Almond when she returned to the hearing room for her phone after leaving the hearing on 24 September 2024. The exchange is recorded on transcript from PN557 to PN576 and does not support the assertion. Ms Phung also submits that I am affected by “possible outside influences” without providing any further detail. The submission is made without foundation and is not accepted.

Grounds 15 and 16 (conduct of my Associate and emails from Chambers)

  1. It is said that by assisting to clean up in the hearing room at the end of the hearing on 24 September 2024 and sending a copy of the Digital Court Book to Ms Phung from her personal work email address, my Associate acted in a way that was “unprofessional”, “unnecessary”, trivialised her case and created the impression of informality and potential bias. The submissions are rejected in their entirety. They rise no higher than confirming that my Associate was performing her role diligently and in accordance with the requirements of the role established by the Commission. Ms Phung also complains that Chambers has sent 33 emails to her in the past three months. Accepting that this may well be the case, Ms Phung has sent 50 emails to Chambers in the same period, many of which necessitated a response.

Conclusion

  1. The question in dealing with a recusal application is whether a fair minded lay observer might reasonably apprehend that I might not bring an impartial mind to the resolution of the first and second applications.

  1. For similar reasons as given in the first recusal decision, the answer to the question in the circumstances is “No”. There is nothing in the grounds discussed above, and no other reason, to indicate that I might possibly decide the case other than on its merits. I have no interest in the outcome other than that of fulfilling my statutory duty. Outside of my role as decision-maker, I have no association with any person or thing connected to either the first or second applications. There is, in other words, no logical connection between the nature of the concerns raised by Ms Phung (as summarised above) and the possibility that I might depart from my oath to act impartially in the conduct of, and in deciding, the first and second applications.

Disposition

  1. The second recusal application is dismissed.

COMMISSIONER

Appearances:

No appearance on behalf of the applicant.

P Almond of Paul Almond Employment Law for the respondents.

Hearing details:

2024.
Sydney:
October 9.


[1] Phung [2024] FWC 2672.

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