Fair Work Act 2009

s.394 - Unfair dismissal

Application for an unfair dismissal remedy - Leave to be represented refused

[1] On 1 September 2020, Mr Kevin Govender (Mr Govender) filed an application (Application) pursuant to section 394 of Fair Work Act 2009 (Cth) (FW Act) with the Fair Work Commission (FWC) alleging he was unfairly dismissed by Wellparks Holdings Pty Ltd t/a ERGT Australia (ERGT).

[2] On 23 September 2020, Mr Steven Heathcote of APX Law (Mr Heathcote) contacted the FWC by email advising the FWC that he was acting on behalf of ERGT and foreshadowing filing a Form F3 - Employer's Response to unfair dismissal application on behalf of his client, alleging that Mr Govender's dismissal was a case of genuine redundancy (Jurisdictional Objection). In the same correspondence Mr Heathcote informed the FWC that his client refused to participate in conciliation with a staff conciliator.

[3] On 30 September 2020 ERGT Australia filed a Form F3 - Employer Response.

[4] The Application was allocated to me and listed for a conference to explore the possibility of a conciliated outcome or to make arrangements for the determination of the Application.

[5] On 23 October 2020, Mr Heathcote informed Chambers that he was not available on the listed date of the Conference. On 23 October 2020 Mr Heathcote was asked if ERGT wished to participate in the Conference. Mr Heathcote informed Chambers that his client was happy to forgo participating in conciliation.

[6] In light of this, the Application was listed for a Hearing in Perth at 10:00am on Friday 22 January 2020 (Hearing).

[7] On 6 November 2020, my Chambers issued directions for the filing of materials in advance of the Hearing (Directions). The Directions required the parties to file and serve outlines of submissions, signed and dated witness statements, copies of authorities and any documentary evidence on which they rely.

[8] The Directions required Mr Govender to file his materials with respect to the merits of the Application no later than 4pm on Friday 13 November 2020 and his materials in response to the Jurisdictional Objection no later than 4pm on Friday 20 November 2020. The Directions required ERGT to file its materials with respect to the Jurisdictional Objection no later than Friday 13 November 2020 and its materials in relation to the merits of the Application no later than Friday 20 November 2020.

[9] The Directions also invited parties seeking to be represented by a lawyer or paid agent at the Hearing to make brief submissions in writing to Chambers, ensuring that they copy in the other party, by no later than 4pm on Friday 13 November 2020. The Directions specified that any submissions, with respect to representation, should address the provisions of section 596(2) of the FW Act.

[10] The Directions further outlined that if a party sought to object to a request for representation, a further brief submission setting out their objections should be made in writing to Chambers by no later than 4pm on Friday 20 November 2020.

[11] The Directions also required the parties to file an Agreed Statement of Facts and a Digital Court Book by no later than 4pm on Friday 27 November 2020.

[12] On Friday 13 November 2020, in accordance with the Directions, Mr Govender filed his materials with respect to the merits of the Application.

[13] ERGT's materials, due on 13 November 2020, were filed late. The witness statement which was filed was unsigned and stated to be subject to revision. Mr Heathcote indicated that a finalised and signed statement would be filed by the middle of the following week. The signed statement was not filed the following week and was only provided in a signed form as a part of the Digital Court Book, which was eventually filed on Tuesday 1 December 2020.

[14] Later the same day an application by Mr Heathcote for leave to represent ERGT at the Hearing was also filed late.

[15] On 13 November 2020, Mr Govender wrote to Chambers opposing the granting of permission to ERGT for leave to be represented and opposing the admission of the ERGT materials which were filed late. On 18 November 2020, Mr Govender provided expanded reasons for his opposition to the granting of leave to be represented and requested that the Application be determined by way of Determinative Conference rather than by way of Hearing.

[16] On 20 November 2020, in accordance with the Directions, Mr Govender filed his materials in response to the Jurisdictional Objection.

[17] On 20 November 2020 ERGT filed submissions in relation to the merits of the Application. It is not clear whether the ERGT submissions were served by Mr Heathcote on Mr Govender, therefore they were forwarded to Mr Govender by Chambers.

[18] On 23 November 2020, the parties were informed that the Application would be heard and determined by way of Determinative Conference.

[19] On 26 November 2020, the parties were informed by Chambers that the ERGT's application for leave to be represented had been refused because I was not satisfied that the requirements in section 596(2) of the FW Act had been satisfied.

[20] Mr Govender provided a draft Statement of Agreed Facts and his portion of the Digital Court Book to Mr Heathcote on 25 November 2020 in advance of the filing due date of 4pm on 27 November 2020.

[21] A revised Statement of Agreed Facts was not provided by Mr Heathcote to Mr Govender until 10am on the day the Statement of Agreed Facts was due to be filed and it appears no copy of the Digital Court Book was provided before the due date for filing the Digital Court Book.

[22] The parties were therefore granted an extension until 4pm Monday 30 November 2020 to file both the Statement of Agreed Facts and the Digital Court Book. The Digital Court Book, incorporating the Statement of Agreed Facts, was eventually filed at 3:58pm on Tuesday 1 December 2020.

[23] On 16 December 2020, Mr Heathcote wrote to Chambers requesting that I review my decision to refuse to grant leave to ERGT to be represented at the Hearing. On 17 December 2020, Mr Govender was invited to respond to Mr Heathcote's further submissions in relation to granting leave to ERGT to be represented at the Hearing.

[24] I had intended to review the further submissions of both parties and inform the parties of the outcome of my deliberations in advance of the Hearing. However, on 17 December 2020 Mr Heathcote filed an appeal against, and sought stay orders in relation to, Chambers email of 26 November 2020.

[25] On 18 December 2020 Mr Govender filed submissions in response to Mr Heathcote's further submissions on the granting of leave.

[26] This Interim Decision sets out my reasons for refusing to grant leave to ERGT to be represented at the Hearing based on the submissions and reply submissions filed by both parties.

[27] Whilst the FWC is not bound by the rules of evidence and procedure, it is subject to the common law principles of procedural fairness.

[28] Section 577 of the FW Act also provides that:

"577 Performance of functions etc. by the FWC

The FWC must perform its functions and exercise its powers in a manner that:

(b) is quick, informal and avoids unnecessary technicalities; and

(d) promotes harmonious and cooperative workplace relations."

[29] As the Practice Note - Fair Hearings commencing 15 July 2016 points out:

"The provision of a fair hearing is at the very heart of the Commission's obligations to the parties who appear before it. A fair hearing involves the opportunity for all parties to put their case and to have that case determined impartially and according to law. Members of the Commission are bound to act "judicially" in the sense that they are obliged to provide procedural fairness and to determine matters impartially."

[30] Deciding whether parties are to be represented is a key aspect of ensuring that the manner in which proceedings are conducted is fair and just. [1]

[31] It is not necessary for a party to be represented by a lawyer or a paid agent in the FWC. In fact, section 596(1) of the FW Act provides that a party may be represented in a matter before the FWC by a lawyer or paid agent, only with the permission of the FWC.

[32] Section 596(2) provides that 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:

1. it would enable the matter to be deal with more efficiently, taking into account the complexity of the matter; or
2. 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

1. 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.

[33] The decision to grant permission is not merely a procedural step but one which requires consideration in accordance with section 596 of the FW Act. One or all of the prescribed conditions outlined in section 596(2), but no others, may give rise to the FWC's power to exercise its discretion to grant permission to a person to be represented by a lawyer or a paid agent in any given case.

[34] The decision to grant permission is a two-step process. First, it must be determined if one of the requirements in section 596(2) of the FW Act have been met. Secondly, if the requirement has been met, it is a discretionary decision as to whether permission is granted.[2] Once invoked, such discretion should be exercised appropriately, having regard to the intention of the legislature and the pursuit of justice.[3]

[35] The Explanatory Memorandum to the Fair Work Bill 2008 (Cth) states:

"2291. FWA is intended to operate efficiently and informally and, where appropriate, in a nonadversarial manner. Persons dealing with FWA would generally represent themselves...

2296. In granting permission, FWA would have regard to considerations of efficiency and fairness rather than merely the convenience and preference of the parties."

[36] In addition, the Explanatory Memorandum contains the following commentary in its regulatory analysis section:

"r.335. FWA will move away from formal, adversarial processes, with legal representation and intervening parties. There will also be a higher bar set for representation. Permission for representation will only be granted to parties (including the Minister) where it would enable the matter to be dealt with more efficiently or fairly...It is envisaged that in most cases legal representation will not be necessary."

[37] In Warrell v Walton [2013] FCA 291 Justice Flick stated that:

"[24] A decision to grant or refuse "permission" for a party to be represented by "a lawyer" pursuant to s 596 cannot be properly characterised as a mere procedural decision. It is a decision which may fundamentally change the dynamics and manner in which a hearing is conducted. It is apparent from the very terms of s 596 that a party "in a matter before FWA" must normally appear on his own behalf. That normal position may only be departed from where an application for permission has been made and resolved in accordance with law, namely where only one or other of the requirements imposed by s 596(2) have been taken into account and considered. The constraints imposed by s 596(2) upon the discretionary power to grant permission reinforce the legislative intent that the granting of permission is far from a mere "formal" act to be acceded to upon the mere making of a request. Even if a request for representation is made, permission may be granted "only if" one or other of the requirements in s 596(2) is satisfied. Even if one or other of those requirements is satisfied, the satisfaction of any requirement is but the condition precedent to the subsequence exercise of the discretion conferred by s 596(2): i.e., "FWA may grant permission ...". The satisfaction of any of the requirements set forth in s 596(2)(a) to (c) thus need not of itself dictate that the discretion is automatically to be exercised in favour of granting "permission".

[25] 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. The legislative desire for informality and a predisposition to parties not being represented by lawyers emerges, if not from the terms of s 596, from the terms of the Explanatory Memorandum to the Fair Work Bill 2008 (Cth)..."

[38] Mr Heathcote submits that leave should be granted to ERGT to be represented at the Hearing pursuant to sections 596(2)(a) and 596(2)(b) of the FW Act. In relation to section 596(2)(a) Mr Heathcote submits that granting leave would enable the matter to be dealt with more efficiently, taking into account the complexity of the matter because a lawyer would be:

1. familiar with the relevant legal principles, be able to properly interpret and apply them and assist the FWC to do so;

2. familiar with FWC practices and procedures; and

3. able to identify relevant evidence and discard irrelevant evidence and more succinctly examine and cross examine witnesses.

[39] Mr Heathcote asserts that the Application is factually complex and requires the consideration of a jurisdictional objection.

[40] In relation to section 596(2)(b) of the FW Act, he says that ERGT does not employ any staff member who could properly represent it or engage with the relevant legal issues.

[41] Mr Govender opposes the granting of leave to ERGT. He asserts the Application is not complex and points to Mr Heathcote's email to Chambers on 23 October 2020 in relation to ERGT's availability for a conference in which Mr Heathcote states that:

"The Respondent's preference was always to take the matter to a hearing. The issues are very clear ...".

[42] He also suggests that the late filing of materials by Mr Heathcote is inconsistent with the assertion that granting leave will enable the matter to be dealt with more efficiently.

[43] Mr Govender disputes that ERGT is incapable of representing itself effectively. According to Mr Govender, ERGT is a medium/large size company with an average annual turnover of around 20 million, employing 200-250 employees across Australia. Mr Govender says that ERGT has a dedicated human resource team which comprises:

1. Mr Jude McKernan - Human Resource Manager

2. Ms Sarah Garven - Human Resouce Co Ordinator

3. Ms Monica Colman - Human Resource Co-ordinator

4. Mr James Miller - General Manager Corporate Services

[44] Mr Govender says that unfairness would result if ERGT were permitted to be represented, when he was not represented.

[45] I am not satisfied that the Application is complex. The Digital Court Book which includes the Form F2 Application and Form F3 - Employer Response, application and submissions on representation, statement of agreed and disputed facts, outlines of submissions on both merit and the jurisdictional objection plus all the witness and documentary evidence, in total consists of only 40 pages.

[46] Each party is calling only one witness. The witness statements are one and two pages respectively.

[47] The Jurisdictional Objection is not of a complex nature. Its elements are codified in section 389 of the FW Act. There is a large volume of decided case law in relation to jurisdictional objections of this nature. There is nothing novel about the facts or law in dispute.

[48] I am not satisfied that granting leave would enable the matter to be dealt with more efficiently, nor that ERGT is unable to represent itself effectively.

[49] ERGT's failure to file materials in accordance with Directions and the failure to file materials on time whilst represented gives no indication that granting leave to be represented would enable the matter to be deal with more efficiently.

[50] ERGT's only witness is Mr James Miller (Mr Miller) and, on Mr Heathcote's submission, the ERGT officer who is most likely to represent ERGT in the event that leave to be represented is not granted. According to Mr Miller's witness statement he has a Bachelor of Business majoring in Human Resource Management and Industrial Relations. Mr Miller has responsibility for the human resource function in ERGT, which on the evidence before me, consists of at least three other human resource practitioners.

[51] Presumably Mr Miller's education, role and experience equips him with some familiarity with the legal principles in relation to genuine redundancies and, one would have thought, at least a rudimentary understanding of FWC processes.

[52] The Application is to be heard by way of a Determinative Conference therefore the parties will not require familiarity with FWC process, practices or the rules of cross-examination as these will be explained to the parties during the proceedings and the proceedings will be conducted informally. The FWC also provides extensive resources on its website in both written and video format in relation to the conduct of proceedings.

[53] The evidence in chief has already been given by way of witness statements filed in advance of the proceedings. Each party has only one witness. Cross-examination questions can be prepared in advance of the proceedings. Mr Govender will conduct the cross examination of ERGT's only witness. ERGT's representative will only have one witness to cross-examine.

[54] Outlines of submissions have already been filed setting out the relevant legal principles.

The parties will have the opportunity to provide written closing submissions.

[55] In seeking review of my initial decision with respect to granting leave, Mr Heathcote referred to and relied on my decision in Tracey v BP Refinery [2020] FWC 5787 which was upheld by the Full Bench in Tracey v BP Refinery [2020] FWCFB 6388.

[56] The two matters are very different. Mr Tracey has been involved in the conduct of proceedings in the FWC and the Federal Court arising out of his dismissal almost continually since February 2019. Mr Tracey has undertaken a considerable amount of personal research in relation to the legal issues he has sought to agitate and in the course of doing so acquired familiarity with legal principles, processes and procedures. The legal issues involved in his most recent proceedings are complicated and require consideration of recent developments in case law, at a Federal Court level. The legal and factual issues in dispute involved undertakings allegedly made by BP's representatives.

[57] Mr Govender is a self-represented litigant who was employed by ERGT as an accountant. There is no evidence before me that he has any relevant skills, experience or qualifications relevant to the proceedings. In all the circumstances of this Application, I am of the view that refusal to grant leave to ERGT to be represented at the Hearing is fair and just and in accordance with the FW Act and will allow the proceedings to occur in a manner which is quick, informal and avoids unnecessary technicalities.

[1] Warrell v Walton [2013] FCA 291; (2013) 233 IR 335, 341 [22].

[3] : Chris Lekos v Zoological Parks and Gardens Board T/A Zoos Victoria [2011] FWA 1520 at [33].

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