Phung

[2024] FWC 2672

[2024] FWC 2672

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, 26 SEPTEMBER 2024

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

1. On 5 February 2024, Ms Ngoc Minh (Helen) Phung made an application for an order to stop bullying under s.789FC of the Fair Work Act 2009 (the Act) (AB2024/36) (“the first application”). The first application was made in relation to work performed for MUFG Pension and Market Services Holdings Limited and Link MS Services Pty Limited and named two individuals with whom she worked as having engaged in alleged bullying behaviour.

1. Conferences were held in relation to the first application on 22 and 27 March 2024, 24 April 2024 and 28 June 2024. On 28 June 2024, the parties reached an ‘in principle’ agreement to settle the first application. After discussions over the settlement agreement broke down, the first application was allocated to my Chambers on 17 July 2024.

1. On 2 September 2024, Ms Phung completed a second application for orders to stop bullying at work against the same respondents, with additional persons named as having engaged in bullying behaviour toward her (AB2024/574) (“the second application”). The second application was also allocated to my Chambers.

1. On 16 September 2024, Ms Phung asked me to recuse myself from dealing further with the first and second applications (“the recusal application”). This decision deals with the recusal application. For the reasons below, I decline to recuse myself from dealing with the first and second applications.

The recusal application

1. The reasons given for the recusal application are summarised below, so far as they relate to my conduct in the proceedings to date:

1. Biased directions and unfair hearing on 5 September 2024 on the basis that:
1. The hearing proceeded despite Ms Phung’s absence due to “documented sick leave”.
2. Mr Almond (legal representative of the respondents) “requested and was granted an urgent meeting within less than 24 hours of notice”.
3. Directions were issued that Ms Phung perceives as potentially prejudicial to her case and advantageous to the respondents.
4. Despite having filed more than 100 pages of written evidence in support of her case, Directions were issued for an “expedited one-day hearing” to focus solely on Ms Phung’s case despite no formal response from the respondents and concerns about procedural fairness given the short time allocated to hearing.
2. Failure to address bullying and lack of interim order (failing to respond to a request on 12 September 2024 for an interim stop bullying order against two of the named respondents).
3. Rushed, one-sided hearing, because of the decision to combine two separate cases into a single one-day hearing without considering the lack of response from the respondents, which operates to the disadvantage of Ms Phung.

1. The grounds for the recusal application were elaborated on by Ms Phung in further emails on 16 and 17 September 2024.

The Mention on 5 September 2024

1. On 4 September 2024, Mr Almond requested and was granted an urgent listing to deal with procedural matters. The request was made in the context of:

2. Ms Phung regularly sending documents to the Commission in the nature of ‘updates’ to her case after the time for filing had passed, and my advice to the parties in response that documents filed by Ms Phung after 15 August 2024 in the first application would not be accepted as her evidence in chief.

3. Ms Phung having made the second application, which had only recently been served on Mr Almond’s clients, and which has substantial overlap with the first application; and

4. A separate application by Ms Phung before Anti-Discrimination NSW, then listed for conciliation on 18 September 2024.

1. It is important to observe that the proceeding on 5 September 2024 was not a substantive hearing. It was a short Mention to deal with an application for urgent directions by the respondents, although no Directions were made. The Mention proceeded in Ms Phung’s absence following her advice that she would not be attending. No request for an adjournment was made and I do not accept a submission to the contrary.

1. Ms Phung submits that when deciding to proceed with the Mention in her absence, I did not have regard to the severity or duration of her medical leave. To the extent that this submission can be accepted, it was because I had no information about either of these things. There is no medical evidence before the Commission confirming Ms Phung’s absence from work on sick leave or her inability to participate in Commission proceedings. Her regular communication with the Commission indicates no such inability. The only medical evidence filed by Ms Phung to date is a medical certificate certifying her unfitness for work for the period from 10 to 26 July 2024. Subsequent submissions to the effect that Ms Phung has experienced significant stress and hardship because of the Mention on 5 September 2024 are similarly unsupported by any medical or other evidence.

1. After the Mention on 5 September 2024, I wrote to the parties expressing a preliminary view about varying the existing Directions and seeking their response by close of business the following day. Ms Phung responded briefly on 6 September 2024 to say that she disagreed with the points raised in the proceeding; that she was on sick leave, and that she would make every effort to provide a detailed response within the next few days. No detailed response was received from Ms Phung. Instead, on 12 September 2024, Ms Phung requested interim stop bullying orders against two of the persons named in the second application. In that context, Ms Phung expressed concern that delay and the absence of a response to the second application was a tactic by the respondents to obtain additional time and resources to continue bullying her and destroy evidence.

1. On 13 September 2024, I varied the Directions to give effect to my preliminary view as outlined to the parties on 5 September 2024. Ms Phung submits that the Directions are “potentially prejudicial” to her case and advantageous to the respondents, although limited detail is provided in support of the concern. It appears to arise from a misunderstanding about the effect of the Directions. As Ms Phung submits, she has filed comprehensive materials in the form of more than 100 pages of written evidence in support of the first application, and almost 90 pages in support of the second application. Although the two applications are made 7 months apart, they have substantial overlap.

1. In the circumstances, I do not accept that Ms Phung will be disadvantaged by not having as much time as the respondents to prepare her case. Ms Phung has been actively preparing and filing her case in the Commission on a continuing basis for some time. Nor do I accept that providing for Ms Phung to present her case as against all respondents, as opposed to one respondent at a time, will operate unfairly to Ms Phung or affect her capacity to effectively present her case. Applications to deal with alleged bullying at work often involve more than one respondent, including the employers of persons named in an application. It is ordinary and usually in the interests of efficiency for all allegations to be dealt with as part of the one case, just as it is to deal with two applications affected by substantial overlap together.

1. The Directions provide for Ms Phung to present her case in relation to the first and second applications on 9 October 2024, in anticipation of further directions for the filing of response materials, and a second day or days for hearing of the respondent’s case after 9 October 2024. They do not provide for an “expedited one-day hearing” or allocate only a short time to the hearing of Ms Phung’s case. The actual number of days for hearing will depend on how the evidence progresses. In the meantime, there remains the possibility that settlement discussions might resume and ultimately succeed.

Failure to address bullying or make an interim order after the request on 12 September 2024

1. As noted above, on 12 September 2024, Ms Phung requested interim stop bullying orders against two of the persons named in the second application. I did not accede to the request. On 16 September 2024, Chambers sent a short note to the parties explaining that because I was not satisfied on the materials that the conditions for making an order to stop bullying at work were met, no interim order could issue.

1. Ms Phung submits that this was a disregard for her basic human rights. It is not clear on what basis the submission is put. The Commission cannot make an interim order to stop bullying at work unless satisfied that the conditions in s.789FF of the Act have been met. These are the matters that will be dealt with at the hearing commencing on 9 October 2024, when I will have the benefit of hearing directly from Ms Phung about her experience, and then from the various respondents, before deciding whether I can be satisfied that Ms Phung has been bullied at work and if so, what orders should be made. 

The decision to deal with the first and second applications together

1. Ms Phung submits that my decision to combine her two applications into a single one‑day hearing without considering the lack of response from the respondents means that the hearing will be rushed, one-sided and to her disadvantage. It is correct that the first and second applications will be heard together, due to their substantial overlap; having regard to the continuing work relationship between the parties; and a relatively recent request from Ms Phung to expedite the second application. It is not correct that the case will be heard in a single, one-day hearing.

1. The transcript of 5 September 2024 confirms that consideration was given to the current lack of response from the respondents. Although a Form F73 response was filed in relation to the first application, no formal response has been filed in relation to the second application. This is largely due to the overlap between the two. It is also necessary to observe that not all proposals made by Mr Almond on 5 September 2024 were adopted, and that the varied Directions do not exclude the possibility of further hearing dates or a requirement for the respondents to file materials in response to the applications. To the contrary, and as made clear in the covering email to the Directions sent to the parties on 13 September 2024, these additional steps are currently in anticipation if the matter cannot be resolved in the meantime.

Other matters

1. Ms Phung submits that I have made persistent demands for her to file additional evidence despite the lack of response for the respondents in relation to the second application. I do not agree with this characterisation. The Commission issues directions for the conduct of matters before it. It is expected that parties will comply with those directions. If directions for the filing of documents are not complied with, the Commission may decide to follow up with the parties to encourage their participation in the proceedings. These are not demands but rather expectations that facilitate the efficient administration of justice.

1. Ms Phung also submits that my conduct toward her may constitute adverse action in breach of the Act’s general protections, or a violation of work, health and safety laws, or harassment and discrimination. Allowing for the circumstance that Ms Phung is a self‑represented litigant who may not have had the benefit of legal advice on these matters, the submissions are largely misconceived and the allegation of discrimination is made without foundation.

1. Finally, Ms Phung submits that the significant disparity in legal representation between the parties undermines the fairness of the proceedings. This matter does not appear to be relevant to my conduct of the proceedings. To the extent that it raises the question of whether permission to be represented by a lawyer should be granted to the respondents, that question (so far as the hearing on 9 October 2024 is concerned) has not yet been resolved. The current Directions provide for the parties to make submissions on the matter by 4 October 2024.

Conclusion

1. In all of these circumstances, might a fair‑minded lay observer reasonably apprehend that I might not bring an impartial mind to the resolution of the first and second applications? The answer on my assessment must be “No”. The Commission has a statutory duty to deal with cases fairly, but also quickly. Ms Phung’s first application was made in February 2024, over 7 months ago. It is in the interests of both parties that the matter be progressed to finality. Indeed, on 2 September 2024, Ms Phung noted the 7‑month delay and asked for her case to be expedited and her situation prioritised.

1. Scheduling a hearing after a lengthy period of alternative dispute resolution, and issuing directions aimed at clarifying the case a respondent is required to meet before their evidence is filed, are each steps a fair‑minded lay observer would reasonably expect in the circumstances.  Although the Directions provide for a staged approach to the filing of materials and to the hearing, Ms Phung will have a full opportunity to present her case and to clarify the allegations of bullying behaviour made against the respondents. She will have the opportunity to test any responsive case put by the respondents and to make any further submissions, or file any further evidence, in reply, before a decision is made on the merits of the case.

1. Outside of my role as the presiding Member, I have no interest in the outcome of the case, and no association with any person or thing connected to either the first or second applications. In the circumstances, there is no logical connection between the nature of the concerns raised by Ms Phung and the possibility that I might not bring an impartial mind to the resolution of the first and second applications.

1. Finally, I note Ms Phung’s concern as to my apparent “repeated failure to address all the points in” her application for recusal with “legal reasoning”. It would not have been appropriate to do so until the parties had been given an opportunity to be heard. Although the hearing of the recusal application was not without its challenges, that opportunity has now been provided and this decision deals with each of the points raised by Ms Phung.

Disposition

1. The recusal application is dismissed. The Directions issued on 13 September 2024 remain, including the requirement for Ms Phung to file any further materials in support of her application by 27 September 2024.

COMMISSIONER

Appearances:

N Phung on her own behalf.

P Almond of Paul Almond Employment Law for the respondents.

Hearing details:

2024.

Sydney:
September 24.

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