Fair Work Act 2009_

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

Plumbers Supplies Co-Operative Ltd T/A Plumbers Supplies Co-Op; Ben Ridgeway; Simon Ballingal; Chris Henry; David Power; Grant Crawford; Stephen Wells

Application for an FWC order to stop bullying - recusal application by the Applicant on the basis of actual and apprehended bias - recusal application dismissed.

[1] This decision relates to an application by Mr Peter Hankin for the Fair Work Commission (the Commission) as presently constituted to recuse itself and stop dealing with his application in this matter. Mr Hankin's substantive application is for the Commission to make an order to stop bullying, which Mr Hankin alleges he has been exposed to in his employment with Plumbers Supplies Co-Operative Ltd (Plumbers Supplies).

[2] Mr Hankin has filed submissions in support of his application for the recusal. Plumbers Supplies opposes the recusal application and has filed submissions in response.

[3] It is necessary to deal with the application for recusal expeditiously due to the nature of the application, the current state of the proceedings, and the substantive issues involved.

[4] Having read Mr Hankin's submissions, it is unclear if he is arguing both actual and apprehended bias. In any event, I am unable to discern a basis upon which it could be maintained that I am biased, in an actual or apprehended sense, against Mr Hankin.

[5] In relation to actual bias, I do not know of Mr Hankin outside of these proceedings, other than in terms of a general protections application that was lodged at the same time as the anti-bullying application. The general protections application is presently being held in abeyance pending the outcome of the anti-bullying application. Accordingly, I know nothing about Mr Hankin that could be considered the basis of any actual bias against him or his application. I have had no previous experience of matters before the Commission affecting either Mr Hankin or the various respondents to this application.

[6] I am unable to conceive of any possible interest I would have in the outcome of these proceedings. I have no prejudicial preconceptions about Mr Hankin that would bear upon any decision I would make in this matter and no such alleged preconceptions are identified in the submissions made in support of recusal.

[7] Mr Hankin has said little in the course of the proceedings as his case has been spoken for by his brother, Mr John Hankin, who is a lawyer. Mr John Hankin is a person who may have appeared before me previously. However, I have no recollection of such an appearance or any matter in which Mr John Hankin may have appeared. Moreover, there is no basis identified in the submissions upon which it is said I am actually biased against Mr John Hankin. Accordingly, any potential source of an interest of mine or unfavourable impression of a kind which might give rise to a biased determination does not arise.

[8] To recuse myself on the basis of actual bias, it would be necessary for me to be satisfied, on what is before me, that I have approached this matter with a closed mind or that I have brought an existing state of mind which disables me from undertaking or being willing to undertake a proper evaluation of what is before me in relation to Mr Hankin's anti-bullying application. 1 An allegation of actual bias must be "distinctly made and clearly proven".2 I am not satisfied that Mr Hankin has distinctly made and clearly proved that the Commission as presently constituted harbours actual bias against Mr Hankin.

[9] The submissions made by Mr Hankin directed to the issue of apprehended bias are very extensive.

[10] In summary terms, Mr Hankin's submission in support of recusal on grounds of apprehended bias is that the Commission as presently constituted:

• has been inattentive, unsympathetic and disengaged from the proceedings and the merits of the matter: and,

• appears to have prejudged certain issues in relation to its powers to make orders of the kind available under s 789FF of the Act.

[11] Plumbers Supplies' submissions respond to Mr Hankin's submissions that the Commission has been inattentive to his application and include a broadly accurate chronology of events following the filing of the application. When the application was filed it was necessary for all of the named respondents to be served and provided with notice of the application and provided with an opportunity to respond to the application. Service was effected by the Commission's anti-bullying team.

[12] The chronology submitted by Plumbers Supplies of this matter is broadly accurate and is reproduced as follows:

"The matter was commenced by application dated 3 June 2014. The matter was allocated to Commissioner Lewin. Hitherto, the Commissioner has dealt with the matter as follows:

a. requiring the employer and other named respondents to file written responses to the originating application (within 2 weeks of the application);

b. conducting a telephone conference involving the parties (28 July 2014);

c. conducting a face-to-face conciliation (7 August 2014);

d. directing the filing of submissions and evidence by the applicant (25 August 2014);

e. directing the filing of submissions and evidence by the respondents (26 September 2014);

f. directing the filing of submissions and evidence in reply (3 October 2014);

h. directing the employer respondent to file confirmation of a without prejudice proposal made by it and agreed to by the applicant during the hearing (15 October 2014);

i. conducting further mentions of the matter (16, 22 and 31 October 2014); and

j. directing the applicant to file a response to the abovementioned proposal (Provided on 30 October 2014)."

[13] It is worthy of note that no complaint of any kind which would be encompassed in the above chronology was made about the Commission's procedure in connection with the application by Mr Hankin or raised by Mr Hankin until 30 October 2014, which was subsequent to a mention of the matter on 22 October 2014, which followed a hearing that took place on 8 October 2014.

[14] When the file was first allocated to my chambers it became apparent that the process was not complete and the file had to be returned to the anti-bullying team for the purpose of completion of the service process before the Commission could proceed. The application had been filed on 3 June 2014 but could not be actioned in chambers until 24 June 2014 due to this delay.

[15] Given that Mr Hankin has had the support and assistance of a close relative who is an experienced lawyer throughout the history of the proceedings, one might reasonably wonder how any issue of apprehended bias had been ignored, if indeed such apprehension has been available, until 30 October 2014. This would seem to suggest, contrary to Mr Hankin's submissions that the alleged apprehended bias arises as a consequence of the mention of the matter on 22 October 2014.

[16] Mr Hankin filed draft orders in relation to the application on 4 August 2014. The draft orders were superseded by amended draft orders on 25 August 2014. Both sets of draft orders are appended to this decision as Attachment A and Attachment B, respectively. It is not necessary or appropriate at this moment to embark on a detailed commentary about questions of jurisdiction and power which may arise in relation to the particular terms of the orders sought, except to say there appear to be a number of such questions.

[17] It is, however, relevant to note that the object and purpose of the statutory provisions under which Mr Hankin's application is made is the prevention of bullying in the workplace. Some aspects of the draft orders sought by Mr Hankin are focused on the risk of Mr Hankin being exposed to bullying behaviour in the workplace in which he was performing work up until 29 April 2014. Others concern Mr Hankin's legal rights in the employment relationship with Plumbers Supplies. Mr Hankin has been medically unfit for work since that date and, at the time of this decision, remains unfit for work.

[18] At the hearing on 8 October 2014, Plumbers Supplies, after some interaction with the Commission as presently constituted, without admission, proposed to transfer Mr Hankin from the workplace wherein alleged bullying had occurred (the Cheltenham branch) to another branch (the Preston branch) and to do a number of other things that are consistent with the orders sought by Mr Hankin.

[19] It is convenient to set out some passages of the transcript from the hearing on 8 October 2014, from paragraphs 310 to 350, in this respect:

"MR FORSTER: Yes, I accept that. I have obtained instructions and my instructions are that the employer is prepared to do the following things: the first is it's prepared to provide independent external training to all persons named as employee respondents in the application on the avoidance of bullying. I'm also advised that it's prepared to send Mr Moody and Mr Glover to training in the appropriate means of conducting workplace investigations. I am advised that the Victorian state manager, a person not named in these proceedings, Mr Bill Lees, could perhaps be designated as an appropriate person to manage and monitor facilitation and compliance with those two proposals put forward.

I'm also advised that the employer is prepared, provided that it has some opportunity to consider the logistics of this, to transfer the applicant's employment to another location without any reduction in his current terms and conditions of employment, and that would perhaps be something that can be agreed at the point in time when the applicant is fit to return to work, or if that can be undertaken earlier we will endeavour to do that now that the proposals that are put forward are of course done so without admission of any wrong doing on the part of any person. Certainly we would hope, given what we've heard from the applicant this morning that his desire is to return to work, his desire is to return to a safe location. The commission knows are concerns about whether this is truly his motivation. We think this is about as far as we could go in the circumstances, Commissioner. Thank you.

MR J. HANKIN: Apart from the intimation that a transfer might be possible, that's the first I've heard of any of those items.

MR J. HANKIN: In principle the applicant asked for a transfer pretty much within days of his original formal complaint on 28 April. That request for a transfer was summarily dismissed in very early May and on I think it was 23 May or it might have been the 27th the employer directed the applicant to return to work at Cheltenham, which was the branch where most of the more recent events had occurred. That was the trigger which precipitated the current health breakdown of the applicant. The offer of a transfer appears to be the very minimum that the employer could offer.

THE COMMISSIONER: It's an intention, I think; I don't know whether it's an offer. I'm treating it as an outcome of what - I characterise this as an investigation. I don't think the statutory terminology is necessarily confining this to just consideration of an investigation in section 789FF(2)(a) to something like a police investigation or a formal workplace investigation. It seems to me that this whole process is investigative in nature. It's inquisitive in nature. The employer comes to the commission and says, "Well, we're going to do these things," not, "Let's sign off terms of settlement." It's the employer's intention to manage the business and conduct it into the future with these features which they've just related to me.

So my consideration of those matters is compelled by section 789FF(2)(a), if I was to make an order. They would have to be issues which would form the terms of an order, if I was to make an order. So it follows from that then that if you were of the view that they would mitigate, if not eliminate, the risk that a worker will continue to be bullied then it seems to me the power to make the order doesn't exist.

THE COMMISSIONER: Because you have to be satisfied of that in order for the power to arise. So my thinking is that if an employer says, "Things are changing. They're changing now because we've made a decision they're going to change. We say that these things remove the risk," then you need to be satisfied that they would not in order for the power to arise under section 789FF(1).

MR J. HANKIN: I'm obviously speaking off the top of my head, without having the chance to think deeply about these issues, but a number of matters occur to me. The first is that the offer is made on the express basis of the acts - - -

THE COMMISSIONER: It's a declaration of intent, it's not an offer.

THE COMMISSIONER: It's mischaracterised as an offer.

THE COMMISSIONER: These proceedings don't lend themselves to this idea of offer and acceptance because they are not about settlement, they are about the future.

MR J. HANKIN: The proposed transfer, training, et cetera, is made on the basis of an express, as I understand it, declaration that none of the events depicted in the witness statements by the applicant - - -

THE COMMISSIONER: No, it's just non-admission of them.

MR J. HANKIN: The discussion that I had with my friend was somewhat - - -

THE COMMISSIONER: He said "no admission of wrong doing", which in this case means bullying. I'm not required to make any findings.

MR J. HANKIN: I did ask Mr Forster whether the employer intended to rectify the underpayment of wages under the award.

THE COMMISSIONER: With all due respect, that is not an issue for these proceedings.

MR J. HANKIN: It's part of the bullying conduct that the applicant has complained about.

THE COMMISSIONER: Yes, but we're not in the Federal Court here with an accrued jurisdiction - - -

MR J. HANKIN: The commission can't make an order about money.

THE COMMISSIONER: Yes, exactly. So it's something that I just can't reckon with, I just don't have the power.

MR J. HANKIN: If the applicant is to be placed back into a work environment where the commission is satisfied that he is in fact not being paid what this commission says he has to be paid for his work, then - - -

MR J. HANKIN: - - - that is a factor that goes to the ability of the commission to be satisfied that the proposed transfer back is an appropriate solution to the issues raised by the applicant.

THE COMMISSIONER: I hear what you have to say about that but it just seems to me that that's a dispute independent of this application and it can be resolved according to law. Being a legally qualified person, you'd know that the applicant, if underpaid according to law, can make a claim in various jurisdictions in relation to that matter, not the least of which is through the Ombudsman or alternatively in the Federal Circuit Court.

MR J. HANKIN: Can we have an adjournment for about an hour?

THE COMMISSIONER: Yes, by all means. I think the situation forms up like this for you: the employer says it's going to do all of this without any admission of wrong doing. The issue for me is, in light of that, am I currently satisfied that there is a risk that the worker will continue to be bullied at work? That's a matter that I have to be satisfied of. As the authorities say, particularly in Coal and Allied, not only do there need to be some material facts which could give rise to the satisfaction but it's a matter for the decision-maker to reach personal satisfaction in relation to the matter. The material facts are the intention of the employer and the other question is my personal satisfaction - my own conviction. So 15 minutes?

MR J. HANKIN: I'd like a bit longer, if I could, sir.

THE COMMISSIONER: Half an hour. Could we make it 12.15?