1
Fair Work Act 2009
s 789FC - Application for an order to stop bullying
Mr Tanka Jang Karki
v
The Star Pty Limited t/a The Star Sydney; Ms Jessica Sykes
(AB2018/599)
DEPUTY PRESIDENT SAMS SYDNEY, 13 DECEMBER 2018
Application for recusal of Commission member – application for a stop bullying order –
unrepresented applicant – preliminary conference – alleged actual or apprehended bias and
pre-judgment – principles dealing with recusal applications –– no steps proposed or taken
adverse to applicant’s interests – applicant encouraged to seek advice as to issues arising
from his application – no actual or apprehended bias – recusal application dismissed –
further programming.
BACKGROUND
[1] This decision will determine a preliminary application filed by Mr Tanka Jang Karki
(the ‘applicant’), seeking that I recuse myself from any future involvement in his application
for a stop bullying order against The Star Casino, Sydney (‘The Star’). For the purposes of
this decision it is helpful to set out a short background to the applicant’s recusal application.
[2] On 27 September 2018, the applicant filed an application pursuant to s 789FC of the
Fair Work Act 2009 (the ‘Act’) in which he alleges he has been bullied at work, as a Bellman,
by his Manager at The Star. He described this alleged bullying behaviour as ‘publicly
abusing, threatening and harassing’.
[3] In its response to the s 789FC application, The Star claimed that Mr Karki’s
application arose from a ‘one off’ incident on 27 August 2018 in which he was observed by
Front Office Manager, Ms Jessica Sykes, using his personal mobile phone while on duty in
full view of guests. This was contrary to The Star’s Policies and Procedures. Following a
meeting on 3 September 2018 to discuss this incident, the applicant received a written
warning, which he strongly disputes. He remains at work.
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DECISION
E AUSTRALIA FairWork Commission
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[4] In accordance with my usual procedures, I convened a preliminary conference of the
parties on 1 November 2018. Mr Karki appeared for himself and Ms Delinavelli with Ms Ede,
Ms Sykes and Ms Posetti appeared for The Star. The purpose of the conference was to explore
whether the application might be able to be resolved, without resort to more formal
proceedings. My practice is not to record these conferences, as I use this forum to discuss
settlement of the matter privately with the parties, in both joint and separate sessions.
[5] Plainly, if the proceedings were recorded it would inhibit open, frank and confidential
discussions, if one of the parties subsequently sought to access the transcript of the
proceedings for a subsequent purpose. It is particularly necessary to stress that in these
conferences, the Commission does not receive formal evidence; let alone make findings as to
factual matters in dispute or on jurisdictional objections based on the material which has been
filed on a preliminary basis, or discussed informally during the conference. I understand why
some parties, particularly an unrepresented applicant in anti-bullying matters, might expect
swift and final findings by the Commission, based solely on the information set out in their
application. Obviously, this would be totally inappropriate and contrary to the principles of
natural justice.
[6] It must further be said that there is an obligation on a Member of the Commission, to
at least point out to unrepresented litigants the relevant legislative provisions they will need to
address if the matter proceeds to formal hearing. It is also incumbent on a Member, while
always making it clear that no final view is being expressed, to point out any obvious
weaknesses in either sides case. This is not to be interpreted as expressing any final view, but
merely to be helpful. It goes without saying that a Member must always ensure a degree of
caution and balance in either advising a party of their rights, or expressing a view or opinion,
which might be misinterpreted as a final and conclusive one.
[7] It was in this context, and in my usual way, that I explained to the applicant a number
of jurisdictional objections which The Star had raised, including but not limited to:
a. The warning he received and about which he complained, was a ‘one off’ incident and
s 789FD of the Act defines bullying as repeated unreasonable behaviour.
b. Whether the disciplinary action was reasonable management action carried out in a
reasonable manner (S 789FD(2));
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c. Whether there was a future risk that the applicant would be bullied at work (s 789FF);
and
d. The relevance of the applicant not making a complaint in accordance with The Star’s
Bullying and Harassment Policies.
[8] I explained to the applicant that these are difficult legal questions, about which the
Commission cannot form a final view unless a proper case is prepared and conducted in open
court. In these circumstances, I strongly recommended he seek legal, or other advice as to his
matter. Despite him agreeing to his case being adjourned for 7 days to allow him to obtain
that advice, I proposed 14 days. This adjournment was agreed to by all parties.
[9] Shortly thereafter the applicant lodged a complaint with the President of the
Commission about my handling of the 1 November 2018 conference. I need not traverse the
complaint to the President, although it was largely in the same terms as this current recusal
application. Seemingly arising from the President’s response, the applicant sent a one line
email to my Chambers on 19 November 2018, as follows:
‘Your Honour, I would like you to recuse yourself from the matter AB2018/599 as I am
concerned your continuing the case would be partial. I would apologize for any
inconvenience created’.
[10] The next day, the applicant was advised as follows:
‘Dear Mr Karki
Thank you for your email of yesterday. His Honour has aked me to advise you that a
one sentence request for a recusal is an insufficient basis for your application to be
accepted and detailed reasons are required. Accordingly, his Honour directs that you
file an appropriate application with supporting submissions and directs as follows:
A. The applicant (Mr Karki) to file and serve an appropriate application with
supporting submissions in respect to Deputy President Sams recusing himself from
hearing Mr Karki’s substantive s 789FC application by no later than 4pm on 4
December 2018.
B. The respondent, should it wish to do so, can file any submissions in respect to the
applicant’s recusal application by no later than 4pm on 11 December 2018.
C. All further programming of the substantive stop bullying application is suspended
until the recusal application is determined by His Honour’.
[11] On 1 December 2018, the applicant sent a short submission as follows:
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‘Your honour,
I have applied the case at fair work commission and the hearing was on 1st of
November AB2018/599 at your chamber. on that day ,as soon as your honour entered
the chamber you complained about the nature of the case brought. Your honour
interrogated me about the case and objected every answer I provided as if you were
the attorney of the defendant. Your honour did accept anything the defendant provided
as the evidence.
Your honour also tried to scare me by giving the outcome that could be in favor of the
defendant. I would be ended up paying their legal fee. Your presentation on the case
made me feel that I was a culprit to bring the case to the fair work commission. Your
honour was angry and tough towards me while you were soft and kind to the
defendant. The while scenario made me feel your honour was not impartial and if the
case be heard by your honour I wouldn’t get a fair judgment.
Under these circumstances, I would like your honour to recuse from the case. I also
apologize any inconvenience caused by my decision’.
[12] On 5 December 2018, The Star set out its submissions as follows:
‘AB2018/599 - Application by Karki, Tanka Jang
We refer to your email to Ms Delinavelli dated 3 December 2018 which attaches the
email from the Applicant dated 1 December 2018 seeking for His Honour to recuse
himself from hearing this matter, due to alleged bias. The Star responds as follows.
A difficulty is that it is not all that clear what specific matters are relied on by the
Applicant as part of an actual or apparent bias assertion. The matters referred to by the
Applicant are expressed in particularly general terms. Additionally, it is not clear at
which part of the conference these matters are said to have occurred, including when
the parties were in joint or private session.
However, the primary concern appears to relate to the Deputy President’s approach to
matters raised in support of the Applicant’s bullying claim. Importantly, The Star
submits the allegation of bias is not made out merely because the Deputy President
expressed views as to the apparent merits of the claim, based even on the Applicant’s
own account.
In other words, the ground of disqualification has to involve a reasonable
apprehension that the Deputy President will not decide the case impartially; not that
the party believes the case might be decided adversely to that party (Re Renaud [1986]
HCA 39). Mere assertions of suspicion are not enough.
Conciliators typically and regularly test the strengths and weaknesses of the parties’
respective cases. For the Deputy President to reflect a view that, on the material
available, the Applicant’s claim has issues does not suggest the Deputy President’s
mind is ‘not open to persuasion’ (Minister for Immigration and Multicultural Affairs v
Jia [2001] HCA 17).
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The Applicant’s submission then goes on to refer to comments made about what the
outcome could be, ie. in favour of Respondent; and that costs could be ordered. Again,
this is unexceptional, and typical of the warning which can and should be given when
a weak case is advanced at conciliation.
Finally, the Applicant describes how he felt during the process; which might be the
case subjectively speaking, but this does not reflect the correct test. It is an objective
test, based on what the fair minded observer might reasonably apprehend.
In the circumstances, The Star submits there is no basis for recusal.’
RELEVANT PRINCIPLES
[13] There are no provisions in the Fair Work Act dealing with applications for recusal of
Commission members in matters filed under the Act. However, there is a long line of
authority in the Courts and Tribunals which has established a guiding set of principles to be
applied when a Judge or Judicial Officer is faced with a recusal application. I intend to deal
with some of these authorities below.
[14] The starting point is the notion that a judge should not too hastily recuse oneself
simply because a party demands it. In Antoun v Queen [2006] HCA 2, Kirby J said at [34]:
‘It is true that, in the oft-repeated and oft-applied words of Mason J in Re JRL; Ex parte
CJL30, this Court has "loudly and clearly" expressed a corrective against any view that
a judge should too readily accept recusal because a party has demanded it. In the
administration of justice in Australia, the parties do not (at least normally) have an
entitlement to choose amongst the judicial officers who will conduct the trial. This
principle has been reasserted and applied in many cases. It was not questioned in this
appeal.’
[15] Earlier at para [32] Kirby J said:
‘In this, the approach of this Court has now travelled beyond the apparent approbation
of judicial silence expressed in R v Watson; Ex parte Armstrong. In the United States
of America, such silence has been held, on occasion, to constitute a denial of due
process. It deprives the party who will ultimately be affected by judicial conclusions of
the "opportunity, before judgment, to be heard to correct and to persuade". Just as the
judge should, to a proper extent, listen, so the judge should, to a proper extent, express
any tentative views.’ (endnotes removed)
[16] In Johnson v Johnson [2000] HCA 48, the plurality of the High Court, Gleeson CJ,
Gaudron, McHugh, Gummow and Hayne JJ said at para [46]:
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‘If a court of appeal were deciding an allegation of prejudgment for itself, according to
its own knowledge and standards, a number of considerations might be taken into
account in a case such as the present:
1. Appellate judges realise that most adjudicators strive to be independent and
impartial and to make adjustments (so far as they can) for factors of which they
are aware which might impact on their decision-making. By their training and
experience, most such adjudicators are conscious of the high expectations
imposed upon them.
2. Whatever may have been the tradition in earlier times, opinions favouring
silence on the part of an adjudicator during a hearing (which is the surest
means of avoiding most allegations of prejudgment) are now seen as carrying
risks of an even greater injustice. Unless the adjudicator exposes the trend of
his or her thinking, a party may be effectively denied justice because that
party does not adduce evidence or present argument that could have
settled the adjudicator's undisclosed concerns. A frank dialogue will
commonly be conducive to the avoidance of oversight and the repair of
misapprehensions. Uninformed members of the public are doubtless
sometimes surprised by the robust exchanges which take place in court,
especially between a judge and experienced lawyers. But judges and other
adjudicators and lawyers know that such dialogue can have great value.
3. Changes that have come about in the administration of justice,
including the increase in the number of trials by single judges, have also
required, to some extent, an adjustment to the rules of reticence in judicial
observations that may still be appropriate where trials, criminal or civil,
are conducted before a jury. One of the reasons for such changes has been
the desire to increase the efficient management of the trial process. Yet it
is in that context that the expressions of preliminary and tentative views
may sometimes appear to an outsider to indicate prejudgment. Although
some adjudicators may be hard to shift from tentative opinions, lawyers
know that, in most judicial decision-making, the process is a continuous
one. Preliminary inclinations do change.’ (my emphasis)
[17] The concept of the ‘reasonable bystander’ test was expressed by Kirby J in Johnson v
Johnson; (although noting that His Honour characterised the ‘reasonable bystander’ as the
‘fictitious bystander’. At para [53] His Honour said:
‘The attributes of the fictitious bystander to whom courts defer have therefore been
variously stated. Such a person is not a lawyer. Yet neither is he or she a person wholly
uninformed and uninstructed about the law in general or the issue to be decided. Being
reasonable and fair-minded, the bystander, before making a decision important to the
parties and the community, would ordinarily be taken to have sought to be informed on
at least the most basic considerations relevant to arriving at a conclusion founded on a
fair understanding of all the relevant circumstances. The bystander would be taken to
know commonplace things, such as the fact that adjudicators sometimes say, or do,
things that they might later wish they had not, without necessarily disqualifying
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themselves from continuing to exercise their powers. The bystander must also now
be taken to have, at least in a very general way, some knowledge of the fact that
an adjudicator may properly adopt reasonable efforts to confine proceedings
within appropriate limits and to ensure that time is not wasted. The fictitious
bystander will also be aware of the strong professional pressures on adjudicators
(reinforced by the facilities of appeal and review) to uphold traditions of integrity
and impartiality. Acting reasonably, the fictitious bystander would not reach a
hasty conclusion based on the appearance evoked by an isolated episode of
temper or remarks to the parties or their representatives, which was taken out of
context. Finally, a reasonable member of the public is neither complacent nor
unduly sensitive or suspicious (my emphasis).
[18] Further, Kirby and Crennan JJ relevantly said in Concrete Pty Ltd v Parramatta
Design [2006] HCA 55 at para [112]:
‘Sometimes judicial interventions and observations can exceed what is a proper and
reasonable expression of tentative views. Whether that has happened is a matter of
judgment taking into account all of the circumstances of the case. However, one thing
that is clear is that the expression of tentative views during the course of
argument as to matters on which the parties are permitted to make full
submissions does not manifest partiality or bias.’ (my emphasis)
[19] In Michael Wilson v Nicholls [2011] HCA 48, Callinan J (with whom Kirby, Crennan
and Gummow JJ agreed) set out the relevant law in relation to apprehended bias. At para [31]-
[33], the High Court said:
‘It has been established by a series of decisions of this Court that the test to be applied
in Australia in determining whether a judge is disqualified by reason of the appearance
of bias (in this case, in the form of prejudgment) is whether a fair-minded lay observer
might reasonably apprehend that the judge might not bring an impartial and
unprejudiced mind to the resolution of the question the judge is required to decide. No
party to the present appeal sought in this Court, or in the courts below, to challenge
that this was the test to be applied.
As the plurality in Johnson v Johnson explained, "[t]he hypothetical reasonable
observer of the judge's conduct is postulated in order to emphasise that the test is
objective, is founded in the need for public confidence in the judiciary, and is not
based purely upon the assessment by some judges of the capacity or performance of
their colleagues."
Because the test is objective it is important to keep an inquiry about apprehension of
bias distinct from any inquiry about actual bias. An inquiry about actual bias in the
form of prejudgment would require assessment of the state of mind of the judge in
question. No doubt that would have to be done, at least for the most part, on the basis
of what the judge had said and done. But to allow an inquiry about whether the judge
had in fact prejudged some issue to enter into a debate about what a fair-minded lay
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observer might apprehend is to introduce considerations that are irrelevant to the issue
that is to be decided when a party submits that there is or was a reasonable
apprehension of bias. The respondents did not submit in this Court or in the courts
below that the trial judge had in fact prejudged any issue.’
[20] Further, at [63], [67] and [69] the High Court added:
‘In Ebner v Official Trustee in Bankruptcy, the plurality pointed out that application of
the apprehension of bias principle requires two steps. First, it requires the
identification of what it is said might lead the judge to decide a case other than on
its legal and factual merits. And second, there must be an articulation of the
logical connection between that matter and the feared deviation from the course
of deciding the case on its merits. The plurality in Ebner went on to say that "[t]he
bare assertion that a judge (or juror) has an 'interest' in litigation, or an interest in a
party to it, will be of no assistance until the nature of the interest, and the asserted
connection with the possibility of departure from impartial decision making, is
articulated". So too, in this case, the bare assertion that the judge appeared to be biased
through prejudgment would be of no assistance without articulation of the connection
between the events giving rise to the apprehension of bias through prejudgment and
the possibility of departure from impartial decision making.
…
As pointed out earlier in these reasons, an allegation of apprehended bias
requires an objective assessment of the connection between the facts and
circumstances said to give rise to the apprehension and the asserted conclusion
that the judge might not bring an impartial mind to bear upon the issues that are
to be decided. An allegation of apprehended bias does not direct attention to, or
permit consideration of, whether the judge had in fact prejudged an issue. To ask
whether the reasons for judgment delivered after trial of the action somehow confirm,
enhance or diminish the existence of a reasonable apprehension of bias runs at least a
serious risk of inverting the proper order of inquiry (by first assuming the existence of
a reasonable apprehension). Inquiring whether there has been "the crystallisation of
that apprehension in a demonstration of actual prejudgment" impermissibly confuses
the different inquiries that the two different allegations (actual bias and apprehended
bias) require to be made. And, no less fundamentally, an inquiry of either kind moves
perilously close to the fallacious argument that because one side lost the litigation the
judge was biased, or the equally fallacious argument that making some appealable
error, whether by not dealing with all of the losing side's arguments or otherwise,
demonstrates prejudgment.
…
Here, however, it was said that "the fact that one party appeared before the judge on
seven separate days in closed court raised a different and additional concern". That
concern was identified as the possibility "in such circumstances that the judge's mind
will become familiar with the character of the plaintiff's case to an extent that,
consciously or subconsciously, there will be a tendency to place the further evidence
within the pre-existing mental structure" (emphasis added). But the existence of a
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"concern" described as the possibility of placing the evidence led at trial into a
"pre-existing mental structure" does not demonstrate that the fair-minded lay
observer might reasonably apprehend that the judge might have prejudged an
issue to be decided at trial. In order to establish such a reasonable apprehension
it is necessary to analyse more closely the connection that is asserted between the
conduct and disposition of interlocutory applications and the possibility of
prejudgment.’ (my emphasis)
[21] More recently, the High Court (Kiefel CJ, Bell, Gageler and Nettle JJ said in Isbester v
Knox City Council (2015) 89 ALJR 609 stated at [20]:
‘The question whether a fair-minded lay observer might reasonably apprehend a lack
of impartiality with respect to the decision to be made is largely a factual one, albeit
one which it is necessary to consider in the legal, statutory and factual contexts in
which the decision is made.’
CONSIDERATION
[22] I would firstly observe that unfortunately, but perhaps understandably given the
applicant’s self-representation, that he has not cited any reference or authority to support his
grounds for recusal or his short submission in that regard. Doing the best I can from his
submission, I consider that his application is predicated on an allegation of apprehended bias,
rather than actual bias, as he points to no actual procedural step I have taken, or conclusion I
have come to, on any matter. This must be so, because the conference on 1 November 2018
was preliminary in nature (as I earlier described) and I have taken no steps or made any
decisions adverse to either parties’ interests. Indeed, on one view, the reasonable bystander,
might consider that in allowing the applicant an opportunity to adjourn the matter for 2 weeks
in order for him to seek advice, was a step in the applicant’s favour, particularly given the
statutory imperative in the Commission’s stop bullying jurisdiction to deal with such
applications promptly (s 789FE(1)).
[23] That said, I appreciate that the applicant feels aggrieved by the warning he received on
3 September 2018. I also apprehend that he sees his grievance as relatively straightforward
and uncontroversial. In the applicant’s submission he refers to the conference as a hearing.
This corroborates my apprehension that he expected some finality that day. He is reminded
that filing a stop bullying application is a very serious matter which involves accusations of
bullying against another person/s, which may have long term consequences for all those
involved, including for the applicant’s health and safety. This is why considerable care must
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be taken to ensure the parties appreciate and understand the complex and technical processes
involved in pressing their respective cases in a full hearing.
[24] It must also be said that the applicant’s submission is expressed in general non-
specific terms. He identified no particular example of what he describes as my interrogation
of him; my objection ‘to every answer’ I provided as if you were the attorney for the
defendant’; and that I was ‘angry and tough’ with him. As to the applicant alleging he felt
scared during the conference, he certainly did not raise this at the time or give any indication
that I was acting inappropriately. In any event, mere general assertions and claims of how
someone feels in proceedings, are not a sufficient basis for a recusal application to succeed.
[25] Regrettably, in hindsight, the conference on 1 November 2018 was not recorded or
transcribed. However, I am satisfied that had it been, and from the submissions of both
parties, that a reasonable fair minded observer would not apprehend any lack of impartiality
by me in the conference. Accordingly, the application that I recuse myself from further
dealing with this matter is refused.
Further programming
[26] As The Star has foreshadowed a number of jurisdictional objections to this application
proceeding to its merits, I issue the following directions:
1. The respondent (The Star) is directed to file with the Fair Work Commission, and
serve on the applicant, an outline of submissions, witness statements and other
documentary material the respondent intends to rely on in support of its jurisdictional
objection to the application in this matter by no later than 4 January 2018.
2. The applicant (Mr Karki) is directed to file with the Fair Work Commission, and
serve on the respondent, an outline of submissions, witness statements and other
documentary material the applicant intends to rely on in opposition to the respondent’s
jurisdictional objections to the application in this matter by no later than 6 February
2018.
3. The respondent is directed to file with the Fair Work Commission, and serve on the
applicant, any material in reply to the applicant’s material by no later than 13
February 2018.
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4. The matter will be listed for hearing at 9.30am on 18 February 2019.
DEPUTY PRESIDENT
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ORK WORK COMMISSION FAIR THE SEAL OF
