Suresh Bhalla v Woolworths Group Limited, Sarina Thomas, Jess Bruce
[2022] FWCFB 195
•26 OCTOBER 2022
| [2022] FWCFB 195 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.604—Appeal of decision
Suresh Bhalla
v
Woolworths Group Limited, Sarina Thomas, Jess Bruce
(C2022/5688)
| VICE PRESIDENT CATANZARITI | BRISBANE, 26 OCTOBER 2022 |
Appeal against decision [2022] FWC 2039 of Commissioner O’Neill at Melbourne on 2 August 2022 in matter number SO2022/219 – permission to appeal refused.
Background
Suresh Bhalla (the Appellant) has lodged an appeal under s.604 of the Fair Work Act 2009 (Cth) (the Act) against a decision[1] (the Decision) of Commissioner O’Neill (Commissioner), issued on 2 August 2022, for which permission to appeal is required. The Decision concerned an application for the Commissioner to recuse herself from the stop bullying application brought by the Appellant against Woolworths Group Limited, Sarine Thomas and Jess Bruch (the Respondents), pursuant to s.789FC of the Act.
Originally, this matter was listed for permission to appeal and the merits of the appeal. On 22 August 2022, directions were issued for the filing of material by both parties. The Appellant and Respondents both filed written submissions in accordance with the Directions. The Respondents sought permission to be legally represented at the hearing in accordance with s.596 of the Act. The Appellant filed submissions opposing the Respondents being represented at the hearing. On 6 October 2022, the Full Bench refused permission for the Respondents to be legally represented at the hearing. Given this, the Full Bench decided it would be most efficient to deal with permission to appeal first and then, if permission is granted, hold an additional hearing on the merits of the appeal. Accordingly, the parties were informed that the scheduled hearing would proceed on the basis of permission to appeal only.
For the reasons that follow, permission to appeal is refused.
The Decision
On 27 June 2022, the Commissioner conducted an initial conference to deal with two applications the Appellant had made in the Commission. The first was a s.372 application (C2022/2656) and the second was an application for an order to stop bullying (SO2022/219). These matters were not resolved at the conference.
On 3 July 2022, the Appellant made an application that the Commissioner recuse herself on the ground of apprehended bias. The Appellant submitted that the Commissioner acted in a way that gives rise to a reasonable apprehension of prejudice or that she has an interest in the case which could frustrate unbiased fact finding and legal conclusions. The Appellant’s concerns are based on how the Commissioner acted at the initial conference. Specifically, the Appellant contended that the Commissioner said to her:
·Suresh you have sent lot of evidences and information. I did not go through it all;
·you were not given this job;
·you leave (resign or separate) your workplace;
·your ‘all matters with the company’;
·if member is going to hear this case, it will not be successful;
·they are not paying you; and
·I suggest, they proceed to terminate your employment.
She also says that the Commissioner dealt with her in a dismissive and demeaning manner and tone.
The Commissioner then set out the relevant authorities before turning to consider each of the Appellant’s contentions by way of recollecting the events of the conference.
The Commissioner recalled that she explained that the conference would be an informal discussion of the applications to see whether the matters could be resolved by agreement, and that after hearing from the parties she would have private discussions with each of them. The Commissioner then provided a high-level summary of the key factual circumstances, claims and responses drawn from both the application and responses submitted so that the parties are aware that she had read the material. The Commissioner confirmed she was aware of the Appellant’s 2019 s.372 application that had proceeded to the Federal Circuit Court. The Commissioner also noted that a large amount of material had been submitted and because of this she had not had the opportunity to read all the material filed, but she still had a reasonable understanding of the applications.
The Commissioner acknowledged that the Appellant likely misconstrued the purpose of the conference, noting that the conference was an attempt to resolve the dispute. The conference was not where she would make any findings as the Appellant might have believed. The Commissioner rejected addressing the Appellant by her first name, reading out the Form F8A and ‘pushing the Appellant aside’.
The Commissioner then invited the Appellant and Respondents to make submissions and asked that they focus on resolving the dispute and what outcomes they are hoping to achieve. The Appellant then proceeded to speak at length about her claims. After some time, the Commissioner interrupted her to refocus the discussion on whether an agreement could be reached. For the remainder of the conference the Commissioner went back and forth between the parties. In a private session, the Appellant spoke at great length and speed about her complaints and the Commissioner interrupted her and asked that she slow down.
In relation to the Appellant’s specific comments from the conference the Commissioner gave the following responses:
·The Commissioner had no recollection of saying “you were not given this job”. She noted one of the issues in dispute is whether the Appellant was a ‘Cosmetics Team Member’, or a ‘Store Team Member Level 1’. The Commissioner recalled making a comment along these lines in the context of conveying the Respondents’ view which they had expressed to her in a private session. However, the Commissioner confirmed that this was not any pre-judgment she had made.
·In relation to the claims that the Commissioner said: “you leave (resign or separate) your workplace” and “your all matters with the company” the Commissioner noted that the Respondent had clearly stated in a private session that they would only resolve the matter if it was on the basis of a release and resolution of the Appellant’s claims which involved the cessation of the Appellant’s employment by resignation. The Commissioner recalled explaining this to the Appellant saying that all the matters would need to be resolved not just the present applications and that this would involve ending her employment.
·The Commissioner rejected saying that the Appellant’s anti-bullying case will be unsuccessful and suggesting that the Respondents terminate the Appellant’s employment. The Commissioner commented that the Appellant seemed to have misconstrued her comments that if she is unable to get a full clearance to return to work, it is possible that at some point the Respondents may decide to terminate her employment as she is currently on unpaid personal leave until she provides a full medical clearance to return to her duties. The Commissioner attempted to explain that if the Appellant’s employment was terminated the Commission would not have jurisdiction to hear her anti-bullying application. To this end, the Commissioner commented that the Appellant appeared to misunderstand her comments and has taken them to be a pre-judgment of the case, rather than an attempt to provide the Appellant with information to assist her in considering whether to negotiate a resolution of all matters with the Respondents.
In conclusion, the Commissioner found there was no logical connection between her comments and actions at the conference and the possibility that she may depart from impartial decision making, either because she has prejudged the case or for any other reason. The Commissioner did not accept that she had a personal interest in the proceeding and was not persuaded that a fair-minded lay observer might reasonably apprehend that she might decide the matter other than on its merits. For the reasons above, the Commissioner was not satisfied that a fair-minded lay observer might reasonably apprehend that she might not bring an impartial mind to resolution of the questions for determination. Therefore, the recusal application was refused.
Grounds of Appeal
We have summarised and distilled the following grounds of appeal from the Appellant’s F7 Notice of Appeal, written submissions and oral submission at the hearing:
1.Ground 1 asserts that the Commissioner departed from the facts and legal merits and was not open to persuasion as she determined that the parties have differing views on whether the Appellant was a ‘Cosmetics Team Member’ or a ‘Store Team Member Level 1’.
2.Ground 2 asserts that the Commissioner erred by having regard to extraneous information. The Appellant submits that none of the material provided to the Commissioner referenced “a significant history over several years” between the parties.[2] The Appellant says this constitutes apprehended bias as knowledge of some prejudicial but inadmissible fact gives rise to the apprehension of bias. Similarly, the Appellant asserts that the Commissioner failed to take material she sent to the Commission into account.
3.Ground 3 alleges that the Commissioner erred by having ex parte communication with the Respondents. The Appellant says this explains how the Commissioner came to have the alleged extraneous material. The Appellant submits that this ex parte communication gives rise to a reasonable apprehension of bias.
4.Ground 4 asserts that the Commissioner placed more weight on the Respondents’ claims. The Appellant submits that this demonstrates that the Commissioner was not open for persuasion on these matters.
5.Ground 5 asserts that the Commissioner’s recollection of the ‘you were not given this job’ comments is incorrect.[3] It also alleges additional ex parte communication between the Commissioner and the Respondents given the Commission knew the Respondents’ views which she was trying to convey with the Appellant without speaking to the Respondents.
6.Ground 6 alleges that the Commissioner withheld information from the Appellant during the conference as the contents of [18] of the Decision was not conveyed to her at the time. It also alleges that the Commissioner’s recollection was incorrect, and she did make the following comments to the Appellant: “you leave (resign or separate) your workplace”, “all matters with company” and “I suggest they proceed to terminate your employment”.
7.Ground 7 takes issue with the Commissioner accepting the Respondents’ submissions which were two minutes late.
8.Ground 8 submits that the Commissioner erred by not dealing with personal leave, annual leave and non-payment of wages.
9.Ground 9 asserts that the Commissioner prejudged the case by stating ‘if she is going to hear this case, it will not be successful’. The Appellant rejects the Commissioners recollection of the events at [20] of the Decision.
10.Ground 10 alleges that the Commissioner did not understand the Appellant when she was speaking and did not seek to clarify what was said.
11.Ground 11 takes issue with the conference itself as the Appellant alleges it was an ‘accusing me session’. The Appellant submits that the Commissioner did not identify what offer the Respondents had made nor did she identify the central issues in the matter.
The Appellant submits her appeal is in the public interest as it is important for justice to be done in a fair and unbiased manner and so that the public have confidence in the Commission.
Principles of Appeal
An appeal under s.604 of the Act is an appeal by way of rehearing and the Commission’s powers on appeal are only exercisable if there is error on the part of the primary decision maker.[4] There is no right to appeal, and an appeal may only be made with the permission of the Commission.
Subsection 604(2) requires the Commission to grant permission to appeal if satisfied that it is “in the public interest to do so”. The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment.[5] The public interest is not satisfied simply by the identification of error,[6] or a preference for a different result.[7] In GlaxoSmithKline Australia Pty Ltd v Makin a Full Bench of Fair Work Australia identified some of the considerations that may attract the public interest:
“… the public interest might be attracted where a matter raises issue of importance and general application, or where there is a diversity of decisions at first instance so that guidance from an appellate court is required, or where the decision at first instance an injustice, or the result is counter intuitive or that the legal principles applied appear disharmonious when compared with other recent decisions dealing with similar matters...”[8]
It will rarely be appropriate to grant permission to appeal unless an arguable case of appealable error is demonstrated. This is so because an appeal cannot succeed in the absence of appealable error.[9] However, that the Member at first instance made an error is not necessarily a sufficient basis for the grant of permission to appeal.
An application for permission to appeal is not a de facto hearing of the appeal. In determining whether permission to appeal should be granted, it is unnecessary and inappropriate for the Full Bench to conduct a detailed examination of the grounds of appeal. However, it is necessary to engage with the appeal grounds to consider whether they raise an arguable case of appealable error.[10]
The appeal here is brought against an interlocutory decision. Courts and tribunals have generally discouraged appeals against interlocutory decisions, and it will not usually be the case that permission would be granted to appeal against an interlocutory decision under s.604 of the Act, whether or not s.400(1) applies.[11]
Consideration
We have read and considered all the material filed by the Appellant on appeal. We are not satisfied that the Appellant has identified any instance of appealable error in the Decision. We consider that the conference itself and the Commissioner’s approach to dealing with the parties was entirely open to her and orthodox in the circumstances. Further, in relation to the recusal application we note that the Commissioner applied the correct legal principles, considered, and dealt with the evidence and submissions that were before her, and made findings of fact based on that evidence. For completeness, we will now briefly address the Appellant’s grounds of appeal.
Grounds 1 and 4 take issue with the Commissioner’s assessment of the evidence, alleging that the Commissioner placed more weight on the Respondents’ evidence and had a predetermined view as to whether the Appellant was a ‘Cosmetics Team Member’ or a ‘Store Team Member Level 1’. We do not agree that the Commissioner had improper regard to the facts and merits of the case. The Commissioner correctly explained what material she had read and then had appropriate discussions with the parties to seek their views. The fact that the Commissioner summarised the contents of the Respondents’ response as alleged in Ground 4 is ordinary and expected in the context of an initial conference. These grounds are not enough to give rise to an apprehension of bias.
Grounds 2, 3, 5 and 6 all relate to the Commissioner’s consideration of various materials, including consideration of alleged extraneous material and ex parte communication. The Appellant submits that there has been ex parte communication between the Respondents and the Commissioner which has resulted in the Commissioner obtaining extraneous material about the matter. We reject these submissions as the Appellant has failed to substantiate these claims with any evidence. In terms of the allegation in Ground 6, that the Commissioner withheld relevant information, we note that it is not unusual for the contents of private discussions to be conveyed to the other party by the member and we do not agree that any information was unreasonably withheld by the Commissioner.
Ground 8 alleges that the Commissioner failed to have regard to relevant evidence or material. Specifically, the Appellant referred to personal leave, annual leave and non-payment of wages. We reject this ground of appeal discloses any appealable error, we consider that whether or not the Commissioner had regard to these issues is irrelevant, as it is not the purpose of an initial conference to extensively discuss every issue in dispute.
Ground 7 takes issue with the fact that the Commissioner accepted the Respondents’ submissions even though they were filed two minutes late. We do not agree that this demonstrates that the Commissioner was ‘soft’ on the Respondents. It was open to the Commissioner to accept the submissions despite the late filing, especially to ensure procedural fairness between the parties.
Ground 10 asserts that the Commissioner did not understand the Appellant at the conference and did not seek to clarify what she said. The Appellant has failed to demonstrate what exactly the Commissioner did not understand. Further, we note that at [14] of the Decision the Commissioner recalled asking the Appellant to slow down because she was speaking quickly and was having trouble following her. We reject that this ground discloses any error, let alone appealable error.
Finally, the Appellant alleges apprehended bias or actual bias on behalf of the Commissioner in Grounds 1, 2, 3, 4, 9 and 11. We note that the Commissioner addressed these allegations in the Decision and applied the correct legal principles in making her findings. The Decision put many of the alleged instances of bias into context and we find no error in this regard. We agree that a fair-minded lay observer could not reasonably apprehend from the Commissioner’s comments and conduct at the conference that she might not bring an impartial mind to the resolution of the proceedings. Moreover, we are not persuaded that the Commissioner demonstrated actual bias. The Appellant has failed to point to any instance of actual bias where the Commissioner prejudged the issues in the proceedings. We also wish to restate the Commissioner’s observation at [17] of the Decision, which is that there was limited material before the Commissioner at such an early stage in the proceedings and that the Commissioner’s assessment of the Appellant’s application will only occur after evidence and submissions are filed, and evidence given during a hearing.
Public Interest
Further, we have considered whether this appeal attracts the public interest, and we are not satisfied that:
· There is a diversity of decisions at first instance so that guidance from an appellate body is required of this kind;
· The appeal raises issues of importance and/or general application;
· The Decision at first instance manifests an injustice, or the result is counter intuitive; or
· The legal principles applied by the Commissioner were disharmonious when compared with other decisions dealing with similar matters.
Conclusion
For the reasons set out above, permission to appeal is refused.
VICE PRESIDENT
Appearances:
Ms S Bhalla, on her own behalf.
Mr C McNair, for the Respondents.
Hearing details:
2022.
Microsoft Teams (Video).
12 October.
[1] [2022] FWC 2039.
[2] Decision [11].
[3] Decision [16].
[4] Coal and Allied Operations Pty Ltd v AIRC (2000) 203 CLR 194 [17] per Gleeson CJ, Gaudron and Hayne JJ (Coal and Allied Operations Pty Ltd).
[5] O’Sullivan v Farrer (1989) 160 CLR 210 per Mason CJ, Brennan, Dawson and Gaudron JJ: applied in Hogan v Hinch (2011) 85 ALJR 398 at [69] per Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; Coal & Allied Mining Services Pty Ltd v Lawler and others (2011) 192 FCR 78 at [44] – [46].
[6] GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343, 197 IR 266 at [24]-[27].
[7] GlaxoSmithKline Australia Pty Ltd v Makin[2010] FWAFB 5343, 197 IR 266 at [26]-[27], Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/ Warkworth[2010] FWAFB 10089 at [28], affirmed on judicial review; Coal & Allied Mining Services Pty Ltd v Lawler (2011) 192 FCR 178; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office[2014] FWCFB 1663, 241 IR 177 at [28].
[8] [2010] FWAFB 5343, 197 IR 266 at [24] – [27].
[9] Wan v AIRC (2001) 116 FCR 481 at [30].
[10] Trustee for The MTGI Trust v Johnston [2016] FCAFC 140 at [82].
[11] Wellparks Holdings Pty Ltd t/as ERGT Australia v Kevin Govender[2021] FWCFB 268 at [24]; See Hutton v Sykes Australia Pty Ltd[2014] FWCFB 3384 at [3] and the decisions cited there.
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