Fair Work Act 2009

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

Application for an order to stop bullying - general protections application not involving dismissal - disclosure by Member of ownership of less than 200 Woolworths shares with value of just over $5,000 - Applicant made recusal application - recusal application denied.

• [1] On 20 August 2025, Mr Rage Yassir made an application to the Fair Work Commission (the Commission) for an order to stop bullying pursuant to s.789FC of the Fair Work Act 2009 (the Act). Further, on 1 September 2025, Mr Yassir made an application pursuant to s.372 of the Act.

• [2] Mr Yassir works at a Woolworths supermarket in Brisbane. In relation to his application for an order to stop bullying, he claims that he is being bullied by the Assistant Front End Department Manager in the store in which he works. In relation to his s.372 application, it is made against Woolworths and is largely focussed on the recent decision by Woolworths to pay to Mr Yassir special paid leave and not require his attendance at work, which he claims is adverse action.

• [3] The applications were allocated to me on 4 September 2025. On 5 September 2025, the following correspondence was sent to Mr Yassir and the nominated representative of Woolworths:

Reference is made to the above matters which have been allocated to Commissioner Hunt. All further correspondence directed to the Fair Work Commission (the Commission) in respect of these matters is to be sent to Commissioner Hunt's chambers at the contact details below, copying in the other party to the matters.

The Commissioner has considered the material filed by all parties in relation to the Applicant's anti-bullying application (AB2025/688), and considers it appropriate to convene a teleconference between the Applicant and the Employer. As such, this matter will be listed for teleconference at 11:30am on Thursday, 11 September 2025. A notice of listing will be sent in due course.

All parties are kindly asked to advise of the full names and contact numbers of each person to be dialled into the conference by 4:00pm on Tuesday, 9 September 2025.

The Employer has privately corresponded with the Commission in respect of the Person Named's capacity to participate in proceedings at the present time. The Commissioner has made the decision to presently excuse the Person Named from attendance at the first conference and to be excluded from receiving correspondence at this time. The Employer has indicated it will privately keep the Person Named informed of the progress of the proceedings.

The Commissioner will evaluate this position after the initial conference. The Applicant is directed by the Commissioner not to include the Person Named in correspondence related to these proceedings until otherwise directed.

The Commissioner notes that the Applicant has also made a general protections application under s.372 of the Fair Work Act 2009. A non-dismissal dispute application will only commence with a Commission conference if both parties agree. If both parties do not agree to a conference then the matter can proceed directly to Court. (see Outcomes | Fair Work Commission (fwc.gov.au)) Further information about the Court can be found here Role of the Court in general protections cases | Fair Work Commission (fwc.gov.au).

Chambers awaits receipt of the Form F8D - Response to application to be filed by the Respondent, by no later than 4:00pm (AEST) on Wednesday, 10 September 2025, noting that it was served by the Commission's client services team on 3 September 2025.

Should the Respondent agree to participate in a conference in relation to the s.372 application, the matter will be listed for a joint conference with the anti-bullying application at 11:30am on Thursday, 11 September 2025.

The Commissioner notes that she owns less than 200 Woolworths' shares. At this time, she does not consider that is any basis to require her to recuse herself from having carriage of this matter. If any party objects to the Commissioner having carriage of this matter, they are kindly asked to advise as such."

• [4] In accordance with s.640(2)(c) of the Act, my chambers forwarded the above correspondence to the chambers of the President of the Commission.

• [5] On 7 September 2025, Mr Yassir sent the following correspondence to my chambers, copying in the Woolworths representative and two officials of the Shop, Distributive and Allied Employees' Association (SDA):

"...I refer to Commissioner Hunt's correspondence regarding the anti-bullying application (AB2025/688) and the general protections application under s.372 of the Fair Work Act 2009.

I wish to formally raise an objection to Commissioner Hunt's disclosed shareholding in the Woolworths Group's trading shares. Commissioner Hunt has disclosed that "she owns fewer than 200 shares and does not consider this a basis for recusal". Although shares between 1% to 199% are not significant capital investment in Woolworths Shares, it nevertheless represents a substantial investment. This signifies a financial interest in a party connected to these proceedings.

Accordingly, I would like to submit that any financial interest in a party connected to the above aforementioned proceedings (including commissioner Hunt), may give rise to a perceived conflict of interest.

Additionally, I noted the Commissioner Hunt's direction excuse the Person Named from attendance at the first conference and to be excluded from receiving correspondence at this stage. The Commissioner further indicated that "the Employer has indicated it will privately keep the Person Named informed of the progress of the proceedings". However, I reserve my legal position regarding the private correspondence from Woolworths Group and the process by which this exclusion was determined.

I wish to further clarify that I am concerned the Commission has not disclosed the submissions made by the Woolworths Employer, representative details of the Employer, or Respondent's own submission material (I, however, noted the respondent has not responded to the Commission's directional for submission).

In the interest of procedural fairness, I would like to request that all relevant materials and identities that would be participating in future teleconference or legal proceedings be made available to all the parties. This includes myself. Unless there is a lawful reason for withholding the identity of the Woolworths Employer-teleconference participant, "private" submissions or respondents' submission.

If such legal reasons exist, then it should be clearly stated by the commission and communicated with all the parties involved.

I want to make it clear that I will not participate in any proceedings that are conducted in a manner lacking transparency. Neither will I be part of any process shrouded in secrecy, whereby submissions from the employer, identities of the teleconference participant, or communications are withheld without lawful justification. In doing so, these risks compromising both procedural fairness and the integrity of the outcome.

Lastly, I can confirm the participation of the following SDA Union representatives in future teleconferences [names and telephone numbers provided].

• [6] On 8 September 2025, correspondence was sent from my chambers informing Mr Yassir and Woolworths that the telephone conference scheduled for 11:30am on 11 September 2025 would be converted to a hearing in respect of Mr Yassir's recusal application. Mr Yassir was directed to file any material in support of his application by 10:00am on 10 September 2025. Further, the correspondence indicated that since my appointment in 2016, I estimated that I had dealt with approximately 15 matters with Woolworths and at no time had any party ever objected to me dealing with the matter on the basis of owning less than 200 Woolworths shares.

• [7] The communication to the parties included the following in respect of why I had excused the Person Named from participating at this time:

"The Applicant and the Employer are directed to attend the recusal hearing. The Commissioner excuses the Person Named from attending the hearing. The Commission is in receipt of sensitive medical information relating to the Person Named, and the Commissioner has determined to excuse the Person Named on that basis, at this time. The sensitive medical information relating to the Person Named will not be shared with the Applicant."

• [8] A few hours later, Mr Yassir filed his submissions as to why I ought to recuse myself. His submissions included the following:

"I Rage Yassir as the applicant in this matter, takes issue with the Commissioner Hunt's statement regarding her shareholding in Woolworths Group Limited and her previous conduct in related Woolworths matters. Respectfully, I would like to maintain that even a minimal financial interest from (or in) a party to these proceedings raises a reasonable apprehension of bias, particularly where such interest is coupled with the Commissioner Hunts's prior judicial involvement with matters related to Woolworths Group.

I further reaffirm my legal position that perceived impartiality is a fundamental principle of procedural fairness, hence, I would like to provide full legal and factual submissions in support of this position in accordance with the Commission's timeline, as follows:

Perceived Impartiality as a Fundamental Principle of Procedural Fairness

1. Procedural fairness, also referred to as natural justice, is a cornerstone of administrative and judicial decision-making. It encompasses the principles that ensure decisions are made through fair processes, rather than focusing solely on the fairness of outcomes. Among its core tenets is the requirement of impartiality, both actual and perceived.

2. The Principle of Perceived Impartiality: Perceived impartiality refers to the appearance that a decision-maker is unbiased and disinterested in the outcome of the matter before them. It is not sufficient that a decision-maker is in fact impartial; they must also be seen to be impartial by a reasonable observer. This principle is vital to maintaining public confidence in the integrity of legal and administrative processes.

3. Legal Foundation: The rule against bias is one of the two limbs of natural justice, the other being the right to be heard. The High Court of Australia has consistently affirmed that procedural fairness requires decisions to be made by individuals who are free from actual bias and from circumstances that might give rise to a reasonable apprehension of bias.

4. Application in Practice: In assessing whether procedural fairness has been breached due to perceived bias, courts apply the test of whether a fair-minded lay observer might reasonably apprehend that the decision-maker might not bring an impartial mind to the matter. This test was articulated in Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337, and remains the authoritative standard.

5. Importance in Administrative Law: In administrative contexts, perceived impartiality ensures that individuals affected by decisions have confidence in the fairness of the process. It also serves as a safeguard against arbitrary or prejudiced decision-making. Where a breach of procedural fairness is established, the decision may be rendered invalid and subject to judicial review3.

6. Conclusion, perceived impartiality is not merely a procedural nicety. it is a legal imperative. Its observance is essential to upholding the rule of law, protecting individual rights, and preserving the legitimacy of decision-making institutions. Any departure from this principle risks undermining both the fairness of the process and the public's trust in its outcomes.

I therefore, reserves all my legal rights and intends to fully address the matter of recusal in the forthcoming recusal hearing."

• [9] Mr Yassir stated the following in respect of my decision to excuse the Person Named from participating at this time:

"I Rage Yassir, further noted that Commissioner Hunt has excused the Person Named from attending the recusal hearing due to the receipt of sensitive medical information. I therefore, do not oppose this excusal and acknowledges the Commission's decision not to share the said medical information with the Applicant."

• [10] Mr Yassir elected to copy in my chambers to correspondence he sent to the two SDA officials on 8 September 2025, requesting their participation in the recusal hearing. Mr Yassir then sent correspondence dated 9 September 2025 withdrawing his consent for the SDA officials to represent him, describing that they had tried to persuade him against continuing his applications. He informed them they must cease and desist from contacting him.

• [11] On 9 September 2025, Woolworths advised that it consents to participate in a conference before the Commission in relation to Mr Yassir's s.372 application.

• [12] Mr Yassir represented himself at the hearing. Ms Malinda Price, ER Manager represented Woolworths.

• [13] Mr Yassir contended that any financial interest in a corporation ought to cause a judicial officer to recuse themselves from determining a matter involving that corporation on the basis of apprehended bias. Where Mr Yassir referenced the High Court decision of Ebner v Official Trustee in Bankruptcy (Ebner) in his submission, I asked him during the hearing if he had read the decision. He stated that he had not. I informed Mr Yassir that the issue in Ebner was not unlike the matter before me; except that the relevant Judges of the Federal Court of Australia held significantly more shares than I do and it was determined that there was no basis for the respective Judges to recuse themselves from having heard the respective matters at first instance.

• [14] I indicated to Mr Yassir that he would be provided until today to read the decision in Ebner and he was invited, if he wished, to withdraw his recusal application. Mr Yassir has not withdrawn his application for me to recuse myself.

• [15] The principles associated with determination of applications for a member to no longer deal with a matter for reason of apprehended bias are well-established and are summarised succinctly by the Full Bench in Woodside Energy Ltd v The Australian Workers' Union:[1]

"[38] The applicable principles concerning apprehended bias are as stated in the High Court decision in Ebner v Official Trustee in Bankruptcy.[2] In summary, a judge or tribunal member is disqualified if a fair-minded lay observer might reasonably apprehend that they might not bring an impartial mind to the resolution of the question they are required to decide. That principle gives effect to the requirement that justice should both be done and be seen to be done, a requirement which reflects the fundamental importance of the principle that the tribunal be independent and impartial.[3] The application of the apprehension of bias principle requires two steps: first, it requires the identification of the factor which it is said might lead the judge or tribunal member to decide a case other than on its legal and factual merits; and second, there must be an articulation of the logical connection between the matter and the apprehended deviation from the course of deciding the case on its merits.[4] It remains necessary to determine whether the apprehension is reasonable considered in the totality of all the relevant circumstances, and this is sometimes described as a third step.[5]

[39] Some additional propositions are relevant to this appeal. First, disqualification on the ground of apprehended bias must be "firmly established",[6] and a finding of apprehended bias is not to be reached lightly.[7] Second, an apprehension that an issue may be decided adversely to a party does not constitute an apprehension that the issue might be determined other than impartially.[8] Third, where apprehended bias is asserted on the basis of a previous expression of opinion on an issue by the decision-maker, consideration of whether the "logical connection" required by the second step identified in Ebner exists will require an analysis of the role and importance of that issue in the matter to be determined.[9] Finally, where an apprehension of bias is said to arise by reason of prejudgment, the following principles stated by the Federal Court Full Court in Cabcharge Australia Ltd v Australian Competition and Consumer Commission[10] apply:

'The test for apprehended bias is the same wherever it arises, although the context in which it falls to be applied will clearly affect how the test is applied. One particular occasion of apprehended bias is where it is said, as Cabcharge had alleged here, that the judge has relevantly prejudged matters in controversy. In this context, disqualifying bias results in a state of mind that is not open to persuasion. That is, in this species of apprehended bias, "[t]he state of mind described as bias in the form of prejudgment is one so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented": see Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 ... at 531-2 [71]-[72] per Gleeson CJ and Gummow J. That is, in such a case as the present, it must be firmly established that a reasonable observer might conclude that the decision-maker might not bring to his or her task an impartial mind by reason of prejudgment, in the sense that the decision-maker might be so committed to a conclusion as to be incapable of persuasion to a different view: see Re JRL; Ex parte CJL [1986] HCA 39; (1986) 161 CLR 342 ... at 352 per Mason J.'" (references in original)

• [16] The hypothetical fair-minded lay observer is not conceived of as a lawyer, but a member of the public served by the courts or, in this case, the Commission.[11] As much as there is a need to decide matters impartially, there is also a need to guard against acceding too readily to suggestions of appearance of bias so as to encourage forum shopping.[12]

• [17] Members of the Commission may have some financial interests in corporations. Upon being appointed to the Commission there is no obligation on a Member to divest themselves of those financial interests; they may choose to do so.

• [18] Upon being allocated a matter in which a financial interest is held, it becomes necessary for the Member to disclose the interest.[13]

• [19] The matter before the High Court in Ebner dealt squarely with similar issues that are before me. In Ebner, the proceedings at first instance were before Goldberg J of the Federal Court of Australia. His Honour disclosed that he was a 'contingent beneficiary' under a family trust which owned 8,000 to 9,000 shares in the ANZ Bank, and that he was a director of the trustee of the trust.[14]

• [20] His Honour was requested to recuse himself, to which he determined:[15]

"It seems to me that the issues before the court ... are such that they could not in my opinion impact in any significant way on the share price of the ANZ Bank, and it seems to me therefore that to that extent there is no real pecuniary interest that I have in the proceeding in any way which is such that ... an objective observer, knowing all the relevant facts, would entertain a reasonable apprehension that I would not decide the case impartially or without prejudice. I propose to proceed with the hearing."

• [21] The High Court judgment records the following at [16]:

"[16] On appeal to the Full Court of the Federal Court it was conceded that the appellant could not establish any reasonable apprehension of bias on the part of Goldberg J and that if the reasonable apprehension of bias test were the test to be applied the appeal must fail. The concession was repeated in this Court. The appeal was dismissed."

• [22] In the same decision, the issue of another Federal Court Judge inheriting 2,400 ANZ Bank shares during a trial, against a backdrop of there being approximately 1.5 billion ANZ Bank shares owned by more than 130,000 shareholders, was supportive of there being no basis for the Judge to recuse himself.

• [23] Importantly, the High Court stated the following at [37]:

"[37] There may be other cases where the facts are not so simple. The nature of the judge's association with a litigant may be more complicated, as in Pinochet (No 2). The possible effect of the outcome of a case upon the value of assets owned by a judge may be a matter of serious difficulty. However, in the ordinary case, where a judge owns shares in a listed public company which is a party to, or is otherwise affected by, litigation, and there is no other suggested form of interest or association, the question whether there is a realistic possibility that the outcome of the litigation would affect the value of the shares will be a useful practical method of deciding whether a fair-minded observer might hold the relevant apprehension. In such a case, if the answer to the question is in the negative, the judge is not disqualified. If the answer to the question is in the affirmative, the judge is disqualified, not "automatically", but because, in the absence of some countervailing consideration of sufficient weight, a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the case."

• [24] Further, in respect of a judicial officer's obligation not to readily recuse themselves, the High Court said the following at [19]-[20]:

"[19] Judges have a duty to exercise their judicial functions when their jurisdiction is regularly invoked and they are assigned to cases in accordance with the practice which prevails in the court to which they belong. They do not select the cases they will hear, and they are not at liberty to decline to hear cases without good cause. Judges do not choose their cases; and litigants do not choose their judges. If one party to a case objects to a particular judge sitting, or continuing to sit, then that objection should not prevail unless it is based upon a substantial ground for contending that the judge is disqualified from hearing and deciding the case.

[20] This is not to say that it is improper for a judge to decline to sit unless the judge has affirmatively concluded that he or she is disqualified. In a case of real doubt, it will often be prudent for a judge to decide not to sit in order to avoid the inconvenience that could result if an appellate court were to take a different view on the matter of disqualification. However, if the mere making of an insubstantial objection were sufficient to lead a judge to decline to hear or decide a case, the system would soon reach a stage where, for practical purposes, individual parties could influence the composition of the bench. That would be intolerable."

• [25] I own less than 200 shares against a reported 1.22 billion Woolworths shares and reported 372,000 shareholders. I do not consider that a fair-minded lay observer would have a reasonable apprehension that I would not bring an impartial and unprejudiced mind to the determination of the applications before me.

• [26] Mr Yassir has been unable to identify any logical connection between the alleged apprehension of bias and the obligation to act impartially.

• [27] I decline to recuse myself from dealing with Mr Yassir's applications.

A conference will be convened in respect of the two applications.

[1] [2022] FWCFB 192.

[2] [2000] HCA 63, 205 CLR 337 ('Ebner').

[3] Ibid at [6] per Gleeson CJ, McHugh, Gummow and Hayne JJ.

[4] Ibid at [8] per Gleeson CJ, McHugh, Gummow and Hayne JJ.

[5] CNY17 v Minister for Immigration and Border Protection [2019] HCA 50, 268 CLR 76 at [21] per Kiefel CJ and Gageler J.

[6] Re JRL; Ex parte CJL [1986] HCA 39, 161 CLR 342 at 352 per Mason J, 360 per Wilson J.

[7] CNY17 v Minister for Immigration and Border Protection [2019] HCA 50, 268 CLR 76 at [56] per Nettle and Gordon JJ.

[8] Re JRL; Ex parte CJL [1986] HCA 39, 161 CLR 342 at 352 per Mason J.

[9] British American Tobacco Australia Ltd v Peter Gordon and Anor [2007] NSWSC 109 at [97].

[10] [2010] FCAFC 111, [25].

[11] Charisteas v Charisteas [2021] HCA 29 at [21].

[12] Re JRL; Ex parte CJL [1986] HCA 39; (1986) 66 ALR 239, 248.

[13] Fair Work Act 2009 (Cth) s.640(2).

[14] Ebener v Official Trustee in Bankruptcy [2000] HCA 63, 205 CLR 337 at [15].

[15] Ebner v Official Trustee in Bankruptcy [1999] FCA 110; (1999) 91 FCR 353 at [16].

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