| FWC 3300|
|FAIR WORK COMMISSION|
Fair Work Act 2009
s.789FC - Application for an order to stop bullying
MELBOURNE, 8 JUNE 2018
Application for recusal on grounds of apprehended bias.
 On 27 June 2017 Mr Paul Dixon made an application to the Fair Work Commission (Commission) for an order to stop bullying. He named Ms Gaynor King as a person who had engaged in such conduct directed towards him. On 2 July 2017 Mr Andrew Jewell and Ms Wendy Sherlock made applications to the Commission for orders to stop bullying in the same terms as that of Mr Dixon.
 Following two conciliation conferences before the Commission Mr Dixon, Mr Jewell and Ms Sherlock in those matters discontinued their applications.
 On 14 February 2018 Ms King made an application for costs against Mr Dixon, Mr Jewell and Ms Sherlock pursuant to s.611 of the Fair Work Act 2009 (FW Act).
 On 9 May 2018 I made a decision 1 (costs decision) in relation to the costs application.
 Also on 14 February 2018 Ms King made an application to the Commission for orders to stop bullying. She named Mr Dixon, Mr Jewell and Ms Sherlock as those who had engaged in bullying conduct directed towards her. The application was forwarded to me. One aspect of the bullying conduct she names is the applications for orders to stop bullying made by Mr Dixon, Mr Jewell and Ms Sherlock.
 Ms King’s application for orders to stop bullying was subject to conciliation before me where it did not settle. Directions were therefore issued for the filing of submissions and evidence in relation to the application.
 On 25 May 2018 United Voice, representing Mr Jewell and Ms Sherlock, (Mr Dixon is no longer employed by the employer) wrote to me requesting that I recuse myself from further dealing with the application of Ms King because of comments made by me in the costs decision. It said that these comments may impact on its members’ ability to fair and impartial proceedings and could lead a “fair-minded lay observer to reasonably apprehend that [I] might not bring an impartial and unprejudiced mind to the resolution of these new proceedings.”
 In particular, United Voice says its members’ concerns are based on my comments in the following passages from the costs decision:
 …There was otherwise no other conduct or repeated behaviour of Ms King identified that the costs respondents claimed constituted bullying…
 …But none of this is bullying caused by a pattern of behaviour or repeated behaviour of Ms King …
 …In this respect, it is not clear that their motivations (which suggests intent) in naming Ms King was to “harass or embarrass” her but this is what they did do in naming her as the person they say bullied them. However, I am satisfied that each of the costs respondents sought to gain some collateral advantage over Ms King (and others) in making the application. As they said in their stop bullying applications, their concern was that the counselling letters may have been a first and final warning such that another adverse finding could lead to dismissal. They wanted to ensure that Ms King could not fabricate complaints in the future that might lead to such an outcome. In this respect, I am satisfied that in making the applications, the costs respondents sought to intimidate Ms King (and others who might make a complaint against any of them) into not making any complaint of them in the future for fear that further applications for orders to stop bullying might be made. In this respect, I am satisfied that the costs respondents did seek a “collateral advantage” in making the application of the type referred to in Carter.
 It can be a fine line between actual intent and unintended consequences. In this case, I have decided that the embarrassment and harassment felt by Ms King (which has led to her being absent from work for an extended period of time) has been an unintended consequence as opposed to the actual motivation of the costs respondents.
 However, I am satisfied that the other purpose was to discourage Ms King from making any complaint in the future against any of the costs respondents. This is an improper purpose. To attempt to discourage an employee into not exercising his or her rights to lodge a complaint when that employee may have proper grounds to do so is egregious behaviour and should not go unchallenged. Any employee of the City of Darwin should feel safe in making a legitimate complaint, confident it will be dealt with appropriately and not fear retribution for doing so.
 I am therefore satisfied that the applications were made vexatiously.
 In these circumstances, it is difficult to understand how Mr Dixon and Mr Jewell considered that, at the time they made their stop bullying applications, they had a reasonable chance of success given it would not be possible for them to demonstrate that Ms King had engaged in any repeated behaviour. Ms King said she had had no contact with Mr Dixon since March 2015 and Mr Jewell since mid-June 2016. This was not disputed by either of them. Further, neither suggested any interaction with Ms King in the past that they claimed was bullying conduct.
 For these reasons, I am satisfied that, on the facts known to Mr Dixon and Mr Jewell at the time they made their stop bullying applications that the applications were made without reasonable cause.
 This has been an unfortunate case. The effects of the stop bullying applications have been far-reaching. The ripples caused by those applications have not yet ended. Whilst the costs respondents remain at work (although Mr Dixon has now left the City of Darwin) Ms King has been absent from the workplace since mid-2017.
 United Voice also complains about an email Ms King sent to my chambers in relation to her application against Mr Dixon and whether he should remain as a named person in her application given he is no longer employed by her employer. My chambers responded to this correspondence and copied United Voice into that response.
 United Voice put no submissions as to why my comments in the decision or the email exchange with Ms King which was copied to them might lead a fair minded observer to think I may not bring an impartial view to determining Ms King’s application. Rather, they appear to leave that to me to infer.
 In determining this matter I did seek any submissions that Ms King may wish to make on this application of United Voice.
 On 7 June 2018 Ms King filed a brief submission in which she rejected the submissions of United Voice and considered the application an affront to the professionalism of the Commission.
 I comprehend that United Voice seeks that I recuse myself on the grounds of apprehended bias.
 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 2 which states 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.
 I have applied this principle to the matter before me.
 I have carefully considered the passages from the costs decision issued by me in relation to the applications of Mr Dixon, Mr Jewell and Ms Sherlock. In that decision I made findings in respect to the motivations of the three in making their applications for orders to stop bullying. I found that the applications harassed and embarrassed Ms King, were made vexatiously, sought to intimidate and had far-reaching consequences. Some of these finding are reflected in the passages outlined above.
 I am satisfied that there are views express me in that decision that may lead a lay observer to apprehend that I may not bring an impartial mind to the determination of the application of Ms King. In circumstances where these findings may be directly relevant to a determination of whether Ms King has been bullied at work, and the making of original applications for orders to stop bullying are part of the conduct Ms King complains of, a lay person may consider that I might not bring an open mind to the questions to be determined in Ms King’s application.
 Any person making application to the Commission is entitled to a fair hearing and to have their case determined on its merits. The application by Ms King is inextricably tied up in the earlier applications for orders to stop bullying and the costs application. In order to ensure that everyone, including Ms King, is fairly heard, I am satisfied that I should recuse myself from hearing Ms King’s application for orders to stop bullying.
 I would observe that whilst I am satisfied, on the basis of the costs decision, that this is the right course of action, I am not convinced that the email reply to Ms King gives rise to a reason for recusal. Whilst it is unfortunate that Ms King did not copy United Voice into her email there was nothing untoward or deliberative in the reply Ms King received from my associate.
 The file shall be re-allocated and the parties should expect to hear from another member of the Commission in due course.
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1  FWC 2433.
2  205 CLR 337.