s.394 - Application for unfair dismissal remedy

Sunnyfield Disability Services (ABN 72 000 415 127)

Termination of employment - representation by lawyers and paid agents.

[1] This Decision involves an application for unfair dismissal remedy made pursuant to section 394 of the Fair Work Act 2009 (the Act). The application was made by Luke McGrath (the applicant). The respondent employer is Sunnyfield Disability Services (ABN 72 000 415 127) (the employer).

[2] This Decision is made in respect to the discrete question as to whether the Fair Work Commission (the Commission) should grant permission for the employer to be represented by lawyers or paid agents (the representation question).

[3] The application was filed on 5 January 2020, and the application document indicated that the applicant was unsure whether he would be represented. On 14 January 2020, WilliamsonBarwick lawyers filed a Form F53 - Notice that lawyer or paid agent acts for a person which advised that they acted for the employer. The employer filed a response to the application dated 29 January 2020, which inter alia, raised a jurisdictional objection on the basis that the application had been made out of time (the out of time objection).

[4] On 29 January 2020, a Commission Team Member, Registry (Vic) wrote to the lawyer acting for the employer acknowledging the employer response that had been filed, and in reference to the out of time objection, inquired as to whether, "...you are still willing to participate in the Conciliation Conference which has been scheduled? Alternatively, if you would prefer to have the matter proceed directly to a formal hearing prior to Conciliation, please advise accordingly." On the following day, 30 January 2020, the solicitor acting for the employer responded to the Team Member, Registry (Vic) and advised, inter alia, that; "Our client instructs us that its preference is for the matter to proceed directly to a jurisdictional hearing." There is no indication that the applicant was copied into either of these communications.

[5] On 31 January 2020, the Parties were provided with confirmation that the conciliation that had been scheduled for 17 February 2020 was cancelled. The cancellation notice included the following statements: "The respondent has advised that they wish for their objection to be dealt with in the first instance. The matter will be listed for a conference/hearing."

[6] On 4 February 2020, Catanzariti VP wrote to the applicant in respect to the out of time objection that had been raised by the employer, and in this communication the applicant was invited to provide a written statement upon which the applicant would seek to establish exceptional circumstances so as to allow for an extension of time so as to permit the matter to proceed. On 10 February 2020, the applicant sent an email to the chambers of Catanzariti VP which included matters that the applicant sought to rely upon in respect to establishing exceptional circumstances regarding the out of time objection. On 13 February 2020, the file in this matter was allocated to the Commission as currently constituted.

[7] The matter was initially listed for Pre-Hearing Conference/Conciliation on 25 February 2020. However, the applicant sought and obtained the employer's consent to delay the Pre-Hearing Conference/Conciliation which was subsequently conducted on 6 March 2020. On 6 March 2020, the Commission issued Directions which established a timetable for the Parties to file and serve all evidence and submissions that each relied upon in respect to the out of time objection and the representation question.

[8] In accordance with the Directions, the Parties have provided their respective submissions on the representation question. In a document dated 27 March 2020, the applicant provided written objection to the employer being granted permission to be represented by lawyers or paid agents. On 17 April 2020, Adrian Barwick solicitor, provided written submissions seeking permission to represent the employer.

[9] I have examined and considered the documentary material provided by the Parties in respect of the representation question. In particular, I have carefully considered the submissions in support of permission made on 17 April 2020, by Adrian Barwick solicitor as the basis for this Decision.

[10] The question of representation in proceedings before the Commission is governed by section 596 of the Act which is in the following terms:

"596 Representation by lawyers and paid agents

(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

1. The legislative intentions underpinning s. 596 of the Act have been the subject of various Decisions of the Commission and of Fair Work Australia. Further, the approach to consideration of the representation question has been examined by way of Judicial Review in the (incorrectly named) Judgment of Warrell v Walton[1] (Warrell) and it is relevant to note, in particular, paragraph 25 of that Judgment.

[12] Subsection 596 (2) of the Act includes three factors which separately or in combination, provide basis upon which the Commission can grant permission for a lawyer or paid agent to represent a Party in proceedings such as the Hearing/Conference of a claim for unfair dismissal. The three factors which can be identified in paragraphs (a), (b) and (c) of subsection 596 (2), can be paraphrased as: (a) complexity/efficiency; (b) inability/effectively; and (c) fairness.

[13] In this case, Adrian Barwick solicitor has, in his written submissions asserted that those factors found in subsections 596 (2) (a), (b) and (c) of the Act, respectively involving, complexity/efficiency, inability/effectively, and fairness, operated to provide basis for the Commission to grant permission for the employer to be represented by lawyers. In particular, the submissions made on behalf of the employer emphasised that there was a factual dispute about the evidentiary material filed by the applicant, and that the applicant's credit will be strenuously put in issue.

[14] Conversely, the applicant stated that he objected to the employer being granted permission for legal representation particularly because he was not in a position to hire a lawyer or other representative. The applicant asserted that it would be unfair to him if the employer was represented by lawyers.

[15] The submissions made in support of permission being granted for the employer to have representation asserted that the matter involved "legal complexity" because of the jurisdictional issue arising from the out of time objection, and further complexity was said to arise from the factual dispute that would challenge the applicant's credit. It was submitted that these identified complexities would be dealt with more efficiently with the involvement of a lawyer.

[16] Upon examination of all of the material which has been filed, and a consideration of any contests that may arise from it, it is clear that the matter is not complex. The issue regarding the out of time objection and a factual contest that may involve challenge to the applicant's credit, are not issues that create complexity. These are issues that regularly arise in unfair dismissal matters.

[17] Consequently, although the Commission generally recognises and appreciates the assistance that a lawyer might provide, and which ordinarily would enable the matter to be dealt with more efficiently, the prospect of such assistance should be contemplated in cases where clear complexity can be identified. This is not the case in this instance.

[18] The submissions for the employer asserted that if permission was not granted, its General Manager of People, Learning & Culture would be required to provide evidence and also conduct the case for the employer. Further, in these circumstances, the case would be conducted by someone who was not experienced in industrial relations advocacy.

[19] In his written communication, the applicant stated that he was representing himself.

[20] Upon examination of the submissions made on this point, I recognise that the employer may understandably have some difficulties representing itself without external assistance from lawyers. However, these difficulties would also be experienced by an unrepresented applicant.

[21] The issue of fairness between the Parties is a matter of recognised significance. In this instance, both Parties have made submissions which have addressed the question of fairness.

[22] It was submitted that unfairness would arise if the employer was denied an opportunity to be represented by lawyers. Adrian Barwick solicitor submitted that unfairness would arise if the employer was denied an opportunity to be represented by lawyers because it would experience difficulties associated with its human resources professionals undertaking the representative role.

[23] The applicant stressed that he was unrepresented and there would be unfairness to him if the employer was permitted legal representation.

[24] In this instance, if permission for legal representation for the employer was granted there would appear to be a significant imbalance created because the applicant would be representing himself while the employer obtained external legal representation.

1. In this instance, the determination of the representation question has been strongly influenced by the particular factors regarding fairness between the Parties, and the requirement for informality, as was recognised by his Honour in the Warrell Judgment; "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."[2]

[26] In the present circumstances, applying in particular, the reasoning contained in the Judgment in the Warrell case, I consider that unnecessary formality would be created by the granting of permission for legal representation. Further, a manifest unfairness between the respective Parties would emerge if permission was granted and an imbalance created between an unrepresented applicant against the employer's external legal representatives. The resultant imbalance created by the appearance of more advantageous representation of the employer against the applicant should be avoided, particularly in circumstances where complexity has not been established. Therefore, the fairness criterion has, in this instance, operated strongly against the granting of permission.

[27] In view of the conclusions that I have reached in respect of each of the relevant aspects of subsection 596 (2) of the Act, the permission sought by the employer to be represented by lawyers or paid agents is refused.

1. [1] Warrell v Walton [2013] FCA 291.
2. [2] Ibid @ paragraph 25.

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