[2018] FWCFB 1057

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.604 - Appeal of decisions

Ewa Kolobius
v
The Uniting Church in Australia Property Trust (Q) t/a Wesley Mission Qld
(C2017/5020)

VICE PRESIDENT HATCHER
COMMISSIONER SPENCER
COMMISSIONER HUNT

SYDNEY, 16 FEBRUARY 2018

Appeal against decision [2017] FWC 3907 of Commissioner Simpson at Brisbane on 21 August 2017 in matter number AB2017/135.

Introduction

[1] Ms Ewa Kolobius has applied for permission to appeal and appealed a decision of Commissioner Simpson issued on 21 August 2017 1 (Decision). In the Decision the Commissioner dealt with an application made by Ms Kolobius under s 789FC of the Fair Work Act 2009 (FW Act) for the Commission to make an order to stop bullying, and in doing so considered a number of incidents which had occurred during Ms Kolobius’ employment with the Uniting Church in Australia Property Trust (Q) t/a Wesley Mission (Uniting Church) which she contended amounted to repeated unreasonable behaviour constituting bullying at work. The Commissioner ultimately found that, whilst Ms Kolobius had a strong perception that she had been the subject of bullying at work by her manager and her supervisor, her allegations were not borne out by the evidence and the relevant conduct towards her was reasonable management action carried out in a reasonable manner. On that basis the Commissioner dismissed the application. Ms Kolobius’ appeal does not identify any errors of fact or dispute the findings made by the Commissioner, but rather is advanced on the basis that the Commissioner did not afford Ms Kolobius procedural fairness in the programming and running of the matter and as a result she was not afforded a fair hearing.

[2] Ms Kolobius’ appeal was the subject of a hearing before us on 20 December 2017. Both parties were granted permission to be legally represented at that hearing pursuant to s 596(2) of the FW Act.

Factual and procedural background

[3] Ms Kolobius commenced employment with the Uniting Church as an Aged Care Worker in 2011. From 2014, she claims that her Field Support Supervisor, Ms Vicki Hooper, and the State Manager – Community Care, Mr Volkan Dogan, engaged in repeated bullying behaviour towards her which she alleged gave rise to or exacerbated her mental health issues. Ms Kolobius has not been at work since January 2017.

[4] The specific incidents contended by Ms Kolobius to have constituted bullying against her are outlined in detail in the Decision. In respect of each incident the Uniting Church contended that Ms Kolobius was not bullied but was subject to reasonable management action carried out in a reasonable manner, including formal warnings, counselling and being asked to show cause as to why her employment should not be terminated. On the basis of the evidence before him the Commissioner concluded:

“[115] I have considered all of the evidence concerning this application including competing versions of events. It is clear to me that whilst EK holds a strong perception that she has been the subject of bullying by VH and VD this is simply not borne out by the evidence. To the contrary the evidence demonstrates the conduct of both VH and VD was at all times reasonable management action carried out in a reasonable manner.

[116] Throughout this matter there is pattern of EK making specific allegations that she has been bullied when the evidence points on a number of occasions to her own conduct being inappropriate. This pattern is sufficient for me to be satisfied even in those instances, such as in September and October of 2014 where EK has made an allegation against VH and VH has been unable to recall the incident, that it is unlikely on balance that the allegation would have substance.

[117] On the basis of the conclusions set out above the application is dismissed.”

[5] Because of the nature of Ms Kolobius’ appeal grounds, it is necessary to set out in some detail the procedural history of the matter. Ms Kolobius lodged her application on 13 March 2017, and the matter was the subject of a private conference before the Commissioner on 19 April 2017. On 24 April 2017 Ms Kolobius advised that she did not wish to accept a proposal to resolve the matter which was put at the conference. Following this the employer made an application to have the matter dismissed, which was refused by the Commissioner in an interlocutory decision issued on 25 May 2017. 2 The Commissioner then listed the matter for hearing on 27 and 28 July 2017. The following directions were issued together with the listing:

1. The Employer and the Persons Named will file with the Commission, and serve on the Applicant any submissions in relation to Legal Representation of the Employer and Persons Named under s.596 by 5:00pm Thursday 22 June 2017.

2. The Applicant will file with the Commission, and serve on the Employer and Persons Named any reply submissions in relation to Legal Representation of the Employer and Persons Named under s.596 by 5:00pm Monday 26 June 2017.

3. The Applicant will file with the Commission, and serve on the Employer and Persons Named, any material to be relied upon in relation to the substantive matter no later than 5:00pm Monday 3 July 2017.

4. The Employer will file with the Commission, and serve on the Applicant and the Persons Named, any material to be relied upon in relation to the substantive matter no later than 5:00pm Monday 17 July 2017.

5. The Persons Named will file with the Commission, and serve on the Applicant and the Employer, any material to be relied upon in relation to the substantive matter no later than 5:00pm Monday 17 July 2017.

6. The Applicant may file with the Commission, and serve on the Employer and Persons Named, any Reply material in relation to the substantive matter no later than 5:00pm Monday 24 July 2017.

[6] On 4 July 2017 the Commissioner issued a decision 3 in which he refused permission for the Uniting Church and the persons named in the bullying application to be legally represented by Ms Belinda Winter, a partner at the law firm Cooper Grace Ward.

[7] In accordance with the above directions, on 17 July 2017 the Uniting Church through Cooper Grace Ward filed seven witness statements and associated annexures and documents totalling 745 pages. An accompanying letter noted that Ms Kolobius had been asked to advise which witnesses she would require for cross-examination by 4.00pm 21 July 2017. Ms Winter wrote separately to Ms Kolobius noting that the materials would be couriered to her in hard copy form but informing her that in the interim the materials could be accessed through the Cooper Grace Ward website using a login ID which was provided. Upon receipt by the Commission of the Uniting Church’s materials the Commissioner’s chambers sent to Ms Winter and copied to the parties the following email (omitting formal parts):

“I refer to the above matter. The Commissioner notes your letter received yesterday by the Commission, providing you act for the Respondent, and filing submissions for the Respondent in this matter.

The Commissioner further notes the decision issued to the Parties on 4 July 2017, where permission for the Respondent to be represented was denied.

The Commissioner wishes to clarify that permission was not granted for the Respondent to have a legal representative appear for them in the upcoming Hearing.

…”

[8] On 19 July 2017 Ms Kolobius sent the Commission the following email (omitting formal parts):

“I am writing with regard to the direct email correspondence and the personalised letter in attachments, that I received from Belinda Winters on Monday 19th July 2017 (see below and attached). I am a little bit confused as to what to do because the attached letter states that I must nominate witnesses and notify someone, and I'm not sure who, by Friday 21st July 2017 at 4pm. I know that WMQ have engaged legal representatives for their submissions, but I've never personally dealt with lawyers like this before.

I did see the email that went out from Chambers today regarding legal representation at the hearing, and I understand what the situation is regarding that, but I'm not sure what to do and would appreciate some direction. Not being a legal practitioner, this is all a bit daunting, and I want to make sure I'm following proper procedures. I have copied in all parties as required to ensure complete transparency.”

[9] The following email was sent in reply by the Commissioner’s chambers (omitting formal parts):

“I refer to the above matter and below correspondence.

The Commissioner advises that if there are any statements in the Employer’s material that you take issue with and wish to dispute, you will need to challenge the evidence of those witnesses by asking them questions whilst they are on oath at the Hearing. You should advise the Employer which of their witnesses you wish to challenge the evidence of by the date indicated below. Those witnesses that you do not require can be advised that they will not need to attend the hearing and their Statements can be considered on that basis.”

[10] The matter was then listed for a further directions hearing on the afternoon of 26 July 2017, a day before the substantive hearing. During that hearing it was decided that the matter would proceed on 27 July 2017 by way of a determinative conference. Following the directions hearing Ms Winter emailed the Commission seeking permission for herself and a member of her team to attend the determinative conference “in an advisory capacity”. This email was sent at 6.44pm. At 7.28pm the Commissioner’s chambers responded that “The Commissioner advises that the Employer’s Legal Representatives may attend the determinative conference tomorrow.”

[11] Ms Kolobius attended the determinative conference on 27 July 2017 with her adult daughter as a support person. The transcript of the determinative conference records that the Commissioner said towards the outset:

“Ms Winter's here, from Cooper Grace Ward, but not representing in the sense, under section 596, but allowed to participate in the conference because I've decided that that doesn't cause any particular issue, given the way the matter is going to proceed.” 4

[12] The Commissioner then outlined the process by which he proposed to conduct the determinative conference as follows:

“What I'm going to put to the parties is this, I've got some concerns about this matter being particularly adversarial, given certain sensitivities, in terms of people's somewhat fragile state of mental health, I think both in the case of the applicant - look, I don't know because I haven't got particular medical evidence formally before me but also Ms Hooper, I understand, has been on leave from work So this is what I want to propose, and this is a practice that's sometimes used in unfair dismissal matters that are conducted as conferences. Those people that are going to give evidence and be open to being questioned about their evidence take an oath or affirmation, adopt the material they've filed but they can stay at the Bar table.

I'm going to propose that Ms Kolobius, Mr Dogan and Ms Hooper all stay in the room. They can all take their oath or affirmation at the same time, stay at the Bar table and this process can be conducted in more of a - it will still be sworn evidence, so you need to appreciate the seriousness of actually adopting swearing to the evidence you've given and you're going to give, it will be someone [sic] inquisitorial, I might ask some questions, but I want to involve a process that doesn't involve people being in a witness box, cross-examined in the traditional adversarial way.

I think that will give me the ability to consider any further issues, as to the extent that there are any contests about particular facts on particular days. It's not quite as stressful as a traditional adversarial process but I'm trying to strike a balance between getting before me what I need, because I'm sure parties would appreciate, problems can arise if material just come in, there's no further discussion about it or examination of issues in contest so in terms of the robustness of the process to arrive at conclusions...”. 5

[13] The Commissioner then asked the parties whether they agreed to the proposed process, and they said that they did. 6 The Commissioner marked as exhibits the affidavits of those of the Uniting Church’s witnesses who had not been required by Ms Kolobius to attend the conference. He then administered the oath or affirmation to the three persons who were to give evidence at the determinative conference - Ms Kolobius, Mr Volkan Dogan and Ms Vicky Hooper – and had them affirm their witness statements, which were marked as exhibits. The Commissioner then said:

“THE COMMISSIONER: All that material is in now for my consideration, it's been sworn to. What I was going to propose is this. Ms Kolobius, you're familiar with the events that have occurred, since late 2014, Mr Burns, you're here representing the employer and the two named persons, you're familiar with that history. Look, there's no particular fixed way as to how we deal with this, given we're dealing with it as a conference and not as an adversarial hearing which, as I've already said I think it's a better way to go, given the circumstances we're faced with. What I was going to do was perhaps give parties an opportunity to talk to, because you're on oath, some of the key events that have occurred since the latter part of 2014. Where there are differences between what you've said occurred and what the names persons have said occurred, that will be then sworn evidence that I can have regard to in determining the facts of the matter. Are people content that that's a reasonable way to proceed? It's consistent with the way that we've adopted the approach this morning.” 7

[14] The Commissioner then proceeded with this approach, and took the parties through each incident of alleged unreasonable behaviour relied upon by Ms Kolobius. The Commissioner conducted the matter in this way as a guided discussion, but at some points questioned the witnesses more specifically. After this process was completed, and a short break was taken, Ms Kolobius and the representative for the Uniting Church were given the opportunity to present short closing submissions. At no point during the determinative conference does the transcript disclose that Ms Winter said anything on behalf of the Uniting Church.

Appellant’s appeal grounds, submissions and evidence

[15] The case ultimately advanced by Ms Kolobius was that the Commissioner fell into error when he failed to properly apply s 577 of the FW Act by failing to afford her a fair hearing or procedural fairness. The grounds of appeal originally put by Ms Kolobius in her notice of appeal dated 11 September 2017 were substantially superseded by an outline of submissions filed on her behalf on 1 December 2017. The principal propositions advanced in these written submissions may be summarised as follows:

(1) The Commissioner did not provide an adequate level of assistance to Ms Kolobius, given that she was self-represented at all times and was suffering from mental health issues, of which the Commissioner was aware. The Commissioner should have intervened to clarify to Ms Kolobius the continued involvement of Ms Winter after her email of 19 July 2017. As a result of failing to intervene, Ms Kolobius was prejudiced by the impact the prospect of having to deal with lawyers at the conference has on her and her case preparation.

(2) The Commissioner did not adopt a fair program for the matter in that the directions of 19 June 2017 only gave Ms Kolobius seven days to respond to the large volume of materials filed by the Uniting Church and the persons named. The time allowed to respond was insufficient and did not allow for any slippage or take into account Ms Kolobius’ mental illness.

(3) It was unfair and unjust to Ms Kolobius to allow the Uniting Church to have legal representation at the determinative conference and the Commissioner should have intervened to seek the views of Ms Kolobius on the attendance of Ms Winter at the conference. Further, in holding that Ms Winter was allowed to participate in the conference without requiring permission under s 596 because it did not cause any particular issue, the Commissioner acted on a wrong principle and failed to take a material consideration into account, namely the requirement to formally decide the issue of legal representation pursuant s 596(2) issue.

[16] Ms Kolobius contends that the decisions of the Commissioner cause her significant prejudice in that:

a) her case preparations were adversely impacted;

b) she was intimidated by the presence of lawyers;

c) she had to navigate a confusing process with a depleting confidence in the Commission;

d) her mental health condition(s) were exacerbated at the most critical stage in the proceedings;

e) she had to take increased dosages of sedative medications to her detriment, which affected her cognitive functioning, her ability to recall facts and her ability to answer questions convincingly;

f) her ability to properly present her case at the conference on 27 July 2017 was adversely impacted; and

g) her personal presentation at the conference on 27 July 2017 was adversely affected.

[17] Ms Kolobius’ appeal submissions were accompanied by witness statements made by herself, her daughter, Ms Sandra Golda and her husband, Mr Andrew Kolobius. These statements detailed the adverse impact the Commissioner’s decision to allow Ms Winter to participate in the determinative conference had on Ms Kolobius including causing her to take additional medication to manage her anxiety. Ms Kolobius’ witness statement in particular stated, in summary:

● when the Commissioner issued the directions, she did not realise and was not made aware that she could have asked for longer than seven days to respond to the Uniting Church’s materials;

● when on 4 July 2017 the Commissioner refused to grant the Uniting Church permission for legal representation, she thought there would be no further involvement by lawyers;

● on 17 July 2017, when she received an email from Ms Winter explaining how she could access the Uniting Church’s materials, she became confused about Ms Winter’s role in the matter, and became anxious and worried that she would not be able to deal with the number of documents involved and would be dealing with lawyers after all;

● on 19 July 2017, after the exchange of emails with the Commissioner’s chambers, her mental state deteriorated because she thought she was being treated unfairly by the Commission, as Ms Winter was being allowed to have a role and she had to process a large amount of documents in a short period of time;

● by 26 July 2017 she was “in a very bad way mentally” and was taking her prescribed medication to try and calm down;

● at the mention conducted that day she was nervous, not sure how to reply to question, and so just agreed to everything the Commissioner said;

● when she saw the email from Ms Winter shortly after the mention asking for permission to attend the conference, she became anxious and distressed, and spoke to her doctor by phone and received advice as to what medications to take;

● she became more anxious after she saw the email from the Commissioner allowing Ms Winter to attend the conference, and she could not sleep that night despite taking her medication;

● on 26 July 2017, the day of the conference, Ms Kolobius said she felt scared, was shaking and her anxiety was “getting unbearable”, and she took the medication her doctor had told her to take;

● during the conference she “felt under attack” and “couldn’t get my thoughts together, my brain was simply failing me and I was aware of it but powerless to do or say anything”.

[18] Annexed to Ms Kolobius’ witness statement was a letter from her treating psychologist, John Hughes, addressed to the Commissioner and dated 25 May 2017. It reported on Ms Kolobius’ recent mental health history. For privacy reasons we will not reproduce or summarise the entire contents of the letter; it is sufficient to say that it referred to an earlier diagnosis of adjustment disorder with features of complex trauma, and also to “marked observable features of distress, reports of suicidal ideation, reports of the police attending her house to check she was safe, multiple presentations to her GP and explicit discussion regarding hospitalisation” as well as “observable changes ... panic attacks and trembling, confusion, tears and other physiological signs...”. The psychologist said this was consistent with her allegations of workplace bullying and that she had been “very unwell”.

[19] These witness statements were admitted into evidence in the appeal (over the objection of the Uniting Church). The makers of the statement were not cross-examined.

[20] The notice of appeal contended that permission to appeal should be granted on the following grounds:

(1) The appeal had general application as it involved a review of how the Commission should deal with unrepresented litigants in anti-bullying matters suffering mental illness, of which there are likely to be many, and raised important issues of access to justice and how the Commission goes about its work and fulfils its statutory functions of conducting its business fairly. Having the matter determined by the Full Bench has the prospect of positively impacting applicants in similar circumstances.

(2) The public would benefit from Full Bench guidance as to the circumstances under which parties can have the assistance of their legal representatives during determinative conferences once legal representation under s.596(2) is refused, and the scope of any subsequent involvement.

(3) There also appeared to be a “grey area” as to the scope of so-called “out-of-court” work which could be conducted by a legal representative without the grant of permission under s 596. Rule 12 of the Fair Work Commission Rules 2013 (FW Rules) does not allow a legal representative to directly correspond with an opposing party if legal representation has been refused. Neither does rule 12 deal with scenarios where an opposing legal representative “serves” documents on an unrepresented litigant by granting the litigant access to its own website, an arrangement which on the face of it also appears to breach rule 12. Full Bench guidance on this issue would assist all litigants and their representatives.

[21] In a reply submission dated 15 December 2017 Ms Kolobius also contended that “The public interest test is met in this case because it involves a fundamental point about the intersection between s.577(a), s.596(2) and Part 6 - 4B of the FW Act. It is important that the Commission sets out what “fair and just” means in the context of a determinative conference held to deal with an anti-bullying application made by a person with a mental impairment”.

[22] The appeal was set down for hearing before us on 20 December 2017. In oral submissions, Ms Kolobius’ legal representative accepted that Ms Kolobius faced difficulty in identifying specific examples in the Decision of where the contended lack of procedural fairness caused her prejudice, but submitted that this was due to the fact that Decision was written in a way that was descriptive rather than evaluative of the evidence before him.

[23] With respect to the submission that the Commissioner failed to provide adequate assistance to Ms Kolobius, it was contended that the Commissioner had a responsibility or “duty” to provide assistance to self-represented litigants, particularly those with mental health issues. The Commissioner had before him evidence from Ms Kolobius’ treating medical practitioners of suffering from adjustment disorder, mixed and anxiety and depressive features caused by bullying in the workplace. It was contended that this duty to provide assistance was ongoing and enlivened once the decision was made to hold a determinative conference, and that that responsibility should have included the Commissioner doing the following:

● clarifying the motivations behind the management actions said by Ms Kolobius to have constituted bullying 8 including clarifying with Ms Kolobius if at certain times she was asking the Commissioner to draw inferences concerning motivations9;

● providing a warning when Ms Kolobius became discursive, wandered off topic or lacked focus in answering questions¹⁰;

● explaining how Ms Kolobius might satisfy him of certain evidential matters, the elements required to satisfy the legal tests as well as explaining the difference between submissions and evidence¹¹;

● taking an approach more akin to cross-examination in relation to the witnesses for the Uniting Church¹².

[24] With respect to the issue of the Commissioner allowing the Uniting Church’s legal representatives to attend the determinative conference, Ms Kolobius contended that the presence of the legal representatives amounted to representation for the purpose of s 596 of the FW Act for which permission had not been granted under s 596. 13 It was put that the presence of lawyers enabled the Uniting Church’s witnesses to give better evidence14, and may have caused the advocate for the Uniting Church, Mr Greg Burns, to have raised objections against Ms Kolobius which were of a legal nature and appeared to have been accepted by the Commissioner, in circumstances where they may not have been raised had it not been for the presence of the legal representative.15

Consideration – permission to appeal

[25] We are not satisfied that this is a matter in which permission to appeal should be granted, either in the public interest or on a discretionary basis, because we do not consider that the appeal has sufficient merit to be characterised as reasonably arguable. As earlier stated, Ms Kolobius’ appeal proceeded entirely on procedural grounds, and she did not seek to identify any error in the factual findings made by the Commissioner concerning each incident of alleged unreasonable behaviour or in the Commissioner’s overall conclusion that the conduct of Mr Dolgan and Ms Hooper in relation to Ms Kolobius constituted reasonable management action carried out in a reasonable manner.

[26] The appropriate way for the Commission to discharge its duty in s 577(a) to perform its functions and exercise its powers in a manner which is fair and just will vary depending upon the circumstances of the individual case. Relevant factors in this connection will include whether the parties are permitted to be legally represented, the legal and evidentiary complexity of the matter, the resources and degree of sophistication of the parties, and any special disability from which any party suffers. In this case, it may readily be accepted that the fact that Ms Kolobius was self-represented, had mental health issues, and was litigating a matter that was intensely personal to her and not unrelated to those mental health issues, required a significant adjustment to the normal procedures of the Commission in order to conform to s 577(a).

[27] We consider it to be apparent that the procedure adopted by the Commissioner, which we have earlier recounted in some detail, was adapted to meet Ms Kolobius’ particular circumstances. The procedural steps he took included the following:

● refusal of permission for Uniting Church to be represented by lawyers (subject to the advisory role at the conference permitted to Ms Winter, which we discuss further below);

● the determination of the matter by way of a determinative conference rather than a formal hearing;

● the conduct of the determinative conference by way of a guided discussion and limited inquisitorial interventions by the Commissioner; and

● the adoption of a procedure by which Ms Kolobius would not be subject to cross-examination and would not be required to cross-examine any of the Uniting Church’s witnesses.

[28] The submissions advanced on Ms Kolobius’ behalf as to the alleged procedural unfairness in the approach taken by the Commissioner involved a micro-analysis of the Commissioner’s conduct of the matter rather than the identification of any significant procedural error. Ms Kolobius’ case on appeal had a rather elusive character and presented as somewhat of a moving target, but the general tenor of it appeared to be that various procedural steps taken by the Commissioner were responsible for the distressed mental state which Ms Kolobius described herself as being in before and during the determinative conference. However the material before us, including the new evidence which Ms Kolobius adduced in the appeal, is incapable of supporting such a proposition. It is clear that Ms Kolobius had significant mental health issues well before any of the procedural steps taken by the Commissioner about which complaint is made occurred. The psychologist’s report annexed to Ms Kolobius’ statement of evidence dated 25 May 2017 makes this entirely clear. It is not remotely surprising that the stress associated with litigating her bullying allegations, to which Ms Kolobius attributed her mental health problems, exacerbated her condition. Court and tribunal proceedings are inherently stressful for the individuals personally involved at the best of times, and that is undoubtedly magnified when an individual enters such proceedings with a pre-existing mental health disorder. In those circumstances, absent evidence of the clearest nature, it would be impossible to causally attribute any mental distress suffered by a litigant to any particular procedural step taken by a Commission member.

[29] The underlying premise of Ms Kolobius’ case appears to be that the obligation in s 577(a) for the Commission to perform its functions and exercise its powers in a manner that is fair and just required the Commissioner, in the circumstances of this particular case, not to take any step which disturbed Mr Kolobius’ mental equilibrium and thus prejudiced her capacity to present her case. That, we consider, puts the Commission’s duty under s 577(a) far too highly. Section 577(a) certainly requires the Commission to adopt a procedural course which allows all parties a fair opportunity to advance their respective cases. We consider that the procedural steps which the Commissioner took which we have earlier set out adequately discharged that duty, and it is difficult to identify any further step which the Commissioner could have taken to ensure that Ms Kolobius could present her case in a reasonably informal and non-adversarial setting. The proposition which logically follows from Ms Kolobius’ case on appeal is that s 577(a) required the Commissioner, in an uninformed way, to make an assessment of the potential psychological effect of each procedural step he took on Ms Kolobius’ pre-existing mental health condition. That is a self-evidently untenable proposition and would make the discharge of the obligation in s 577(a) unworkable.

[30] In any event, having perused the transcript including the particular passages to which we were taken by Ms Kolobius’ legal representative in the appeal, we are not satisfied that Ms Kolobius was in fact prejudiced in her capacity to present her case, and indeed what the transcript demonstrates occurred is quite at odds with Ms Kolobius’ description of the experience. An example of this is the following exchange:

THE COMMISSIONER: Can I just ask you this question, though, I can see you're getting upset so - - -

MS KOLOBIUS: I'm not upset.

THE COMMISSIONER: I'm just struggling with what it is that Ms Hooper did, on 13 January, that would fall within the meaning of bullying. I mean she came to speak to you and you said, "Well, why couldn't she have emailed me?" It's not the conduct that day then, I'm gleaning, from what you're saying, it was because of earlier conduct that you didn't want to speak to her on that day.

MS KOLOBIUS: Yes. But there was no need to. Why would I need to talk to her? I finished work, did she send me an email? Was it something important that she needed from me? Why is she stopping me from going home? What was the reason?

THE COMMISSIONER: If she is your line supervisor, the fact that she wants to speak to you, sitting here objectively, my view is that there would be nothing unusual about that.

MS KOLOBIUS: Well, Commissioner Simpson, we have three to five (indistinct) visits and that's what we are paid for. So if Ms Hooper wants to talk to me she needs to make the time, instead of - because I'd clocked off. If people come to work, you finish your work and you're going home. I understand it, it wasn't a social call, I couldn't go home. Why wouldn't she let me? Why it couldn't wait until the next day? 16

[31] The above passage is significant because it shows, firstly, that Ms Kolobius positively denied she was upset and, secondly, was capable of strongly asserting her position.

[32] Insofar as it is complained that the Commissioner failed to give adequate assistance to Ms Kolobius as a self-represented litigant in focusing her attention upon the issues to be decided, again our perusal of the transcript shows that to be unfounded. For example, the following exchange shows the Commissioner, in response to a submission from Ms Kolobius, directing her to the statutory test for bullying at work:

THE COMMISSIONER: I understand what you're saying, Ms Kolobius, which is that you - including what occurred on the 15th, in the context of your condition on the day, was inappropriate, but I guess the warning is far broader than that.

MS KOLOBIUS: That's right. How about mitigating factors, like I said about the incident - now, I do (indistinct) because if Ms Hooper just let me be, didn't bother me in the morning and afternoon almost every other day, there was always something, Commissioner, there wasn't a think [sic] I could have done right. Can you imagine you imagine coming to work every day and someone ambushes you in the corridor when you're trying to leave and go to work and there is always something you've done or haven't done right? Or you're trying to go home and there is an other [sic] issue? You're already clocked off, this is not within the time. So the mitigating factor is, I don't start trouble, I never did, with anyone, I'm a people pleaser, always was, all my life. I try to do everything by the book, always.

THE COMMISSIONER: Sure. Ms Kolobius, it's clear to me that the pattern throughout the evidence is that it's your perception that Ms Hooper was looking to find fault in you all the time, that's your perception of what's occurred. What I've got to do is go through the events and, further to that, for you to succeed here you've got to satisfy me that there was repeated conduct that falls within the meaning of bullying and there's a risk it could happen in the future now. Part of your perception of what's been going on for a period of years is that Ms Hooper has been trying to find circumstances where she can single you out and I'm going through the evidence. 17

[33] We have also examined the transcript to test some of the more specific complaints raised by Ms Kolobius, including that the Commissioner’s questioning of Ms Kolobius was more testing and inquisitorial than in relation to Mr Dogan and Ms Hooper. It is sufficient to say that we consider these complaints have no substance.

[34] In relation to the other specific matters raised in Ms Kolobius’ submissions, firstly, Ms Kolobius’ email to the Commissioner of 19 July 2017 only requested advice about one specific procedural matter, namely the request made on behalf of the Uniting Church that Ms Kolobius identify which of its witnesses she required to attend the conference. The Commissioner’s chambers responded promptly and directly to this request for advice. There was no request in Ms Kolobius’ email for clarification about the role of Ms Winters in the proceedings nor any reason to imply this was necessary; indeed her email, which we have earlier set out, said: “I did see the email that went out from Chambers today regarding legal representation at the hearing, and I understand what the situation is regarding that...” (underlining added).

[35] Secondly, the complaint that the program for the filing of evidence established by the directions of 9 June 2017 only gave Ms Kolobius seven days to respond to the Uniting Church’s extensive materials is without merit, for a number of reasons. First, the directions did not require Ms Kolobius to file anything in reply; they were permissive rather than mandatory in nature. Second, Ms Kolobius was unable to identify any actual prejudice caused by the program in terms of being able to reply to the evidentiary case of the Uniting Church (noting that she filed a 4 page reply submission on 20 July 2017), and the procedure adopted at the determinative conference in any event allowed Ms Kolobius ample opportunity to reply to that case. Third, Ms Kolobius did not, either before or during the determinative conference, give any indication that she was prejudiced by the direction concerning the time for filing reply evidence. In this connection, it is noteworthy that on 19 July 2017, two days after first being given access to the Uniting Church’s evidentiary case, Ms Kolobius as just discussed initiated a communication with the Commissioner’s chambers about a procedural difficulty, but made no mention of being prejudiced by the program for the filing of reply evidence.

[36] Thirdly, it is likely, as was contended by Ms Kolobius, that Ms Winter’s attendance together with her associate at the determinative conference constituted legal representation for which permission was required under s 596. In the recent Full Bench appeal decision in Fitzgerald v Woolworths Limited 18 it was held that the attendance of a lawyer at a hearing in an unfair dismissal matter for the purpose of assisting the advocate of a party, in circumstances where the lawyer had been engaged to provide professional legal services generally to the party in relation to the matter, constituted representation for the purposes of s 596. If so, the Commissioner arguably erred in granting permission to Ms Winters to attend the determinative conference without first satisfying himself that at least one of the jurisdictional prerequisites for the grant of permission under s 596(2) was satisfied (although it must be observed that the decision in Fitzgerald was delivered well after the Commissioner conducted the determinative conference in this matter).

[37] However, as was made clear in Fitzgerald, the demonstration of an error of this nature is not sufficient by itself to lead to the success of an appeal on this point. The Full Bench, having identified error on the representation point in Fitzgerald, disposed of the appeal before it as follows (emphasis added):

“[57] It does not follow, as was made clear in NSW Bar Association v McAuliffe, that the error we have identified necessarily requires the Decision to be quashed. Mr Fitzgerald’s main complaint about Woolworths’ representation was that, having been informed by the Commissioner that permission under s.596(2) was not required for Mr Bennett’s attendance at the hearing, he could not reasonably have anticipated that he would subsequently face a costs application that included the fees charged for Mr Bennett’s attendance at the hearing. That point has a degree of substance, notwithstanding that Woolworths had in earlier correspondence placed Mr Fitzgerald on notice that he might face a costs application should he proceed with his application. However, that is a matter relevant only to the consideration of Woolworths’ costs application, which is not before us for determination. Mr Fitzgerald did not identify any specific prejudice that was caused to him in the conduct of the hearing by Mr Bennett’s participation. His complaint that he was “misled” at the directions hearing on 25 January 2017 concerning Woolworths’ intentions concerning legal representation does not go anywhere in terms of any prejudicial effect upon the hearing. For the reasons earlier given, Woolworths’ jurisdictional objection had overwhelming merit, and we cannot identify any reasonable possibility that a different ruling on the question of representation could have led to a different outcome. Therefore, having granted permission to appeal, we consider the appropriate course is simply to dismiss the appeal.”

[38] In this appeal there is, as earlier stated, no challenge to the factual findings or the ultimate conclusion reached in the Decision. Nor is it possible to identify any actual prejudice caused to Ms Kolobius’ capacity to advance her case at the determinative conference. As earlier stated, Ms Winter is not recorded as having said anything at the determinative conference, and the contentions that Uniting Church’s witnesses gave better evidence because of her presence or that she was responsible for certain objections advanced by the Uniting Church’s advocate are purely speculative and find no support in the record of proceedings. Although Ms Kolobius may have felt prejudiced by Ms Winter’s presence in a subjective sense, there is no basis to conclude objectively that she was prejudiced given that the transcript discloses that her participation in the determinative conference was active and robust.

Conclusion

[39] We order that permission to appeal is refused.

scription: Seal of the Fair Work Commission with the member's signature.