Fair Work Act 2009

s 394 - Unfair dismissal

Application for an unfair dismissal remedy - application by NSW Trains for permission to be represented by a lawyer - application opposed - allegations of serious misconduct involving sexual harassment - complainants to give evidence - medical evidence likely - matter sufficiently complex that permission should be granted - proceedings will be conducted more efficiently and fairly if permission is granted - exercise of discretion - permission granted for employer to be legally represented.

[1] Mr Dino De Giusti (the 'applicant') was dismissed from his employment as a Passenger Service Supervisor by NSW Trains (the 'respondent') on 7 April 2017. His dismissal for alleged serious misconduct followed an investigation of nine allegations - the majority of which concerned the alleged sexual harassment or inappropriate conduct towards a number of female colleagues and the travelling public. An investigation concluded that all of the allegations were substantiated. On 21 April 2017, Mr de Giusti filed with the Fair Work Commission (the 'Commission') an application for an unfair dismissal remedy, pursuant to s 394 of the Fair Work Act 2009 (Cth) (the 'Act'); namely that NSW Trains' decision to dismiss him be 'overturned' and he be reinstated to his former position.

[2] This matter has had some history. The application was originally allocated to Commissioner Johns. At two earlier listings of the matter for mention/directions (11 July and 26 July 2017), there was no appearance, for or on behalf of the applicant at this conference. On 14 July 2017, the Rail Tram and Bus Union (the 'Union') filed a notice of representative ceasing to act for the applicant. At the second listing (26 July 2017), NSW Trains made an application to have the application dismissed under s 399A(2) of the Act, for want of prosecution. This application was withdrawn after the Commissioner was alerted to problems with the notice of listing being received by the applicant.

[3] The matter was remitted to me in early September 2017 and listed for hearing on 27 October 2017. In accordance with my usual practice, I also listed a conference with the parties on 25 September 2017. There was no appearance for, or on behalf of the applicant. On 27 September 2017, NSW Trains filed a further application seeking the dismissal of the unfair dismissal application under s 399(1)(b) of the Act. That application was listed for mention/directions on 5 October 2017 and all the extant directions were dissolved. The applicant was also directed to provide an explanation for his non-attendance at the conference on 26 September 2017. On 3 October 2017, Ms Nash, the applicant's partner, advised that she had been unwell prior to the listing and had been in hospital when my Associate phoned the applicant for the conference on 25 September 2017.

[4] At the conference on 5 October 2017, the applicant objected to NSW Trains being represented by a lawyer. Directions were issued seeking submissions as to why permission should be granted for NSW Trains to be represented by a lawyer, pursuant to s 596 of the Act. The directions required the applicant to file his submission by 19 October 2017 (NSW Trains had filed its submissions on 11 October 2017).

[5] On 26 October 2017, I had cause to direct the following email be sent to the applicant:

His Honour notes that you have not complied with the direction to file and serve submissions by COB 19 October 2017 as to your objection to NSW Trains being represented by a lawyer in your unfair dismissal case.

Unless you provide a submission by COB Monday 30 October 2017, His Honour will proceed to determine the application by NSW Trains to be represented by a lawyer on the basis of NSW Trains' submissions an the material already filed by both parties.

You are reminded that a continuing pattern of non-compliance with the Commission's directions, may result in your unfair dismissal application being dismissed. ..."

[6] Ms Nash sent my Chambers an email at 4.50pm on 30 October 2017 stating that the material was almost complete, but not ready to be filed. Although she did not specifically explain what the cause of the delay had been, she said it was as a result of a 'number of circumstances, situations and unexpected issues' beyond their control. She said the submissions would be filed the following morning, Tuesday 31 October 2017. At 9.29am the following morning, Ms Nash emailed my Chambers a document with several pages of text. However, it was in an ineligible font 'Wingdings'. Once the text had been converted to a legible font, it was apparent the document was a totally irrelevant academic essay entitled, 'The Cutting Edge: Educational Innovation, Disability Law, and Civil Rights' by E Moore and P Grossman of the University of Colorado and United States Department of Education respectively. At 9.55am that morning, my Associate emailed Ms Nash asking whether that was the document she intended to file. She responded the following day at 4.13pm advising that she did not know how that material had been filed and that she would try to send the relevant material the following day (2 November 2017). To date, no further material has been provided.

[7] Section 596 reads as follows:

(1) Except as provided by subsection (3) or the procedural rules, a person may be represented in a matter before the FWC (including by making an application or submission to the FWC on behalf of the person) by a lawyer or paid agent only with the permission of the FWC.

(2) The FWC may grant permission for a person to be represented by a lawyer or paid agent in a matter before the FWC only if:

(a) it would enable the matter to be dealt with more efficiently, taking into account the complexity of the matter; or

(b) it would be unfair not to allow the person to be represented because the person is unable to represent himself, herself or itself effectively; or

(c) it would be unfair not to allow the person to be represented taking into account fairness between the person and other persons in the same matter.

Note: Circumstances in which the FWC might grant permission for a person to be represented by a lawyer or paid agent include the following:

(a) where a person is from a non-English speaking background or has difficulty reading or writing;

(b) where a small business is a party to a matter and has no specialist human resources staff while the other party is represented by an officer or employee of an industrial association or another person with experience in workplace relations advocacy.

(3) The FWC's permission is not required for a person to be represented by a lawyer or paid agent in making a written submission under Part 2-3 or 2-6 (which deal with modern awards and minimum wages).

(4) For the purposes of this section, a person is taken not to be represented by a lawyer or paid agent if the lawyer or paid agent:

(ii) an association of employers that is not registered under the Registered Organisations Act; or

[8] It is only necessary for the Commission to consider whether one or more of the subsections (a), (b) or (c) of subsection (2) are satisfied before the Commission embarks on the next step of exercising a discretion to grant permission.

[9] In Applicant v Respondent [2014] FWC 2860, I said:

'[17] In passing, I note that Flick J also said in Warrell:

'The appearance of lawyers to represent the interests of parties to a hearing runs the very real risk that what was intended by the legislature to be an informal procedure will be burdened by unnecessary formality.'

[18] For my part, and with respect, this observation has not been my experience. Invariably, I have found the skills and expertise of an experienced industrial legal practitioner will be more of a help than a hindrance, particularly bearing in mind a legal practitioner's professional obligations to the Commission and the Courts. In this respect, I refer to the comments of Mason CJ in Giannarelli v Wraith (1988) 165 CLR 543; [1988] HCA 52:

'[A] barrister's duty to the court epitomizes the fact that the course of litigation depends on the exercise by counsel of an independent discretion or judgment in the conduct and management of a case in which he has an eye, not only to his client's success, but also to the speedy and efficient administration of justice. In selecting and limiting the number of witnesses to be called, in deciding what questions will be asked in cross-examination, what topics will be covered in address and what points of law will be raised, counsel exercises an independent judgment so that the time of the court is not taken up unnecessarily, notwithstanding that the client may wish to chase every rabbit down its burrow. The administration of justice in our adversarial system depends in very large measure on the faithful exercise by barristers of this independent judgment in the conduct and management of the case.'

[19] More recently, a Full Bench of the Commission in E. Allen and Ors v Fluor Construction Services Pty Ltd [2014] FWCFB 174 said at para [48]:

'A lawyer's duty to the Commission is paramount and supersedes a lawyer's duties to their client. A grant of permission to appear pursuant to s.596(1) of the Act is based upon a presumption that the representative to whom leave is granted will conduct themselves with probity, candour and honesty. The duty of advocates in that regard has been long recognised by the Commission [footnotes omitted].'

[20] Informality is one thing, but there is still a statutory foundation which must be observed in the exercise of all the Commission's powers and functions. In my experience, the prospects of a case being run more efficiently and focused on the relevant issues to be determined, is more likely where competent legal representation is involved. I agree with what was said by the Full Bench in Priestley:

'[13] In our view DPS has established that representation would assist DPS to bring the best case possible. Representation by persons experienced in the relevant jurisdiction will be of undoubted assistance in this regard. We are satisfied that the particular counsel has the capacity to assist the DPS and assist the Tribunal in performing its functions.'

[21] In my view, balancing fairness between parties is as much a case of courtroom management, as it is a case of legislative mandate. With the greatly increased exposure of all courts and tribunals to self-represented litigants, with all of the well known difficulties this brings, the appearance of a focused, experienced and sympathetic legal practitioner is, more often than not, a welcome relief.

[22] On one interpretation, the Commission is positively required to undertake consideration and make appropriate findings in accordance with s 596(2) of the Act, even in circumstances where both parties are legally represented and neither party objects to the legal representation of the other party. To my mind, this is an unnecessary waste of the Commission's time and resources.'

[10] In Cachoa v Hanes [1994] HCA 14; (1994) CLR 403 the High Court, Mason CJ, Brennan, Deane, Dawson, McHugh JJ said at [22]:

'All too frequently, the burden of ensuring that the necessary work of a litigant in person is done falls on the court administration or the court itself. Even so, litigation involving a litigant in person is usually less efficiently conducted and tends to be prolonged ((17) See Powles, "Litigant in Person - Discussion Paper" in Australian Institute of Judicial Administration, the Litigant in Person, (1993) at 10-11. The costs of legal representation for the opposing litigant are increased and the drain upon court resources is considerable.'

[11] In the Discussion Paper referred to by the plurality in Cachoa v Hanes it is said:

'A more practical consequence of the trial judge's duty to the litigant in person is its impact upon the length of trials. In order to ensure a fair trial, the judge will be required to give extensive advice to the unrepresented party at various stages throughout the proceedings. The time consumed by this advice is, if anything, lengthened by the limitation on the judge's advisory role set out in Macpherson, Gidley and Zorad. Judges must be satisfied that accused persons understand their right well enough to enable them to make their own decisions on how to proceed. Ensuring this level of understanding will, in complex cases, be a lengthy process which will increase court delays, add to the costs of proceedings from the point of view of both the court and the other party, and deprive other litigants of access to judicial resources.

A person without legal training is unlikely to be able to discern the real issues in a case. It is likely, therefore, that material will be put which is irrelevant to the question before the court. This can only tend to lengthen proceedings. Intervention by the court is not a complete solution to this problem. Due to the lack of representation, it will be much harder for the court to become conversant with the issues in a case. A court will, therefore, be hesitant to limit the scope of evidence and submissions before coming to a sound understanding of the nature of the matter.'

[12] I have also had regard for the Full Bench decision in New South Wales Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663; (2014) 241 IR 177 and the more recent decision of the Full Bench in Stephen Fitzgerald v Woolworths Limited [2017] FWCFB 2797.

[13] This matter involves very serious allegations of sexual harassment made by a number of female work colleagues, including at least one allegation which was referred to the Police. The applicant strenuously denies the allegations, although he has raised issues of a medical condition, which may have resulted in drowsiness and loss of memory. The applicant has also raised substantive claims of a denial of procedural fairness. In these circumstances, it may be safely assumed that he (and possibly medical professionals) will be closely and extensively cross examined. NSW Trains have foreshadowed at least 12 witnesses being called to give evidence, including the complainants. The proceedings will likely require female witnesses giving uncomfortable, if not distressing evidence. In my judgment, such questioning will demand the objective and sensitive handling of the process by an experienced legal practitioner.

[14] While the applicant is strongly advised to obtain his own legal advice, he is not required to do so. However, given the nature of the proceedings and the seriousness of the allegations against the applicant, I am well satisfied that permission for the respondent to be represented by a lawyer, should be granted, pursuant to s 596(2)(a) of the Act.

[15] For the avoidance of any doubt, I am also satisfied that the matter will be conducted more efficiently and fairly if permission is granted under s 596(2)(b). In light of these considerations, I propose to exercise my discretion to grant permission for NSW Trains to be represented by a lawyer in these proceedings.

[16] I order accordingly.

[17] NSW Trains' application to have Mr de Giusti's unfair dismissal application dismissed, will be listed for further directions by phone, Friday 10 November 2017 at 9.30am.

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