Fair Work Act 2009

Section 394 - Application for unfair dismissal remedy

4WD Accessory Wholesale Pty Ltd T/A Caddy Adelaide

Application for an unfair dismissal remedy - section 596 representation - request by employer opposed by applicant - jurisdiction - whether applicant dismissed -complexity - permission granted on conditions

Application for an unfair dismissal remedy - procedure - whether determinative conference or hearing - request for determinative conference opposed by respondent - statutory scheme - evidentiary dispute - determination by conference subject to further order

[1] Mr Michael Constable (the applicant) has applied to the Fair Work Commission (the Commission) under section 394 of the Fair Work Act 2009 (the FW Act) for an unfair dismissal remedy in relation to his (alleged) dismissal by 4WD Accessory Wholesale Pty Ltd trading as Caddy Adelaide (Caddy or 'the employer'). He claims to have been unfairly dismissed on 25 May 2018. At the date of dismissal he was employed as a Sales Manager.

[2] Caddy oppose the application and raise two jurisdictional issues.

[3] Caddy says that Mr Constable could not have been unfairly dismissed because he was not dismissed. It says that Mr Constable ended his employment with Caddy by action taken on 19 May 2018.

[4] Caddy also says that the remedy of compensation sought cannot be granted if it concerns compensation for an alleged workplace injury.

[5] In response, Mr Constable says that Caddy repudiated his contract of employment and that such conduct was a dismissal within the meaning of section 386 of the FW Act. He seeks compensation. He says that there is no jurisdictional barrier to an award of compensation.

[6] On 3 July 2018 conciliation of the application was conducted by a Commission-appointed conciliator. It was not resolved. It was referred to me for hearing and determination.

[7] On 24 July 2018 I conducted a directions hearing. I issued directions on 25 July. I directed that the hearing commencing on 4 September 2018 deal with all issues in dispute, being the jurisdictional issue as well as merits and remedy.

[8] At the directions hearing the employer foreshadowed that it would seek to be represented by a legal practitioner. Mr Constable foreshadowed that he would oppose such a request. I granted permission for Caddy to be represented up to and including 21 August 2018 but indicated that I would determine the issue of representation beyond that date after receiving further written submissions.

[9] At the directions hearing Mr Constable foreshadowed that he would seek determination by conference. Caddy foreshadowed that it would seek determination by a formal hearing in a courtroom.

[10] The parties were directed to file written materials, including on these contested preliminary issues. Each has done so.

[11] It is noted that in its response to the application, Caddy asserted that it was a small business employer. Mr Constable foreshadowed that this may also be a contested matter. At the directions hearing I drew the parties' attention to the associated entities provisions of the FW Act.[1] In its written submissions of 21 August 2018 the respondent employer submitted that it is not a small business employer having regard to the existence of employees of an associated entity.[2] Accordingly, subject to any further or contrary evidence, that matter does not require determination.

[12] This decision determines the employer's request for representation at the hearing and competing submissions made on the mode of determination.

[13] Section 596 of the FW Act provides 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

[14] The principles governing the application of section 596 of the FW Act were recently summarised by a full bench of this Commission in Grabovsky v United Protestant Association of NSW Inc:[3]

"Subsection 596(1) provides that a person 'may' be represented in a matter before the Commission by a lawyer or paid agent 'only' with the permission of the Commission. Subsection 596(2) provides that the Commission may grant permission 'only if' it is satisfied as to the existence of one of the circumstances set out in s.596(2)(a) to (c). The use of the word 'may' makes it clear that a decision about whether to grant permission to be represented is discretionary. But that discretion is only enlivened if the Commission is satisfied as to the existence of one or more of the circumstances set out in s.596(2)(a) to (c).

Even if one of the requirements in s.596(2)(a) to (c) is satisfied that is simply the condition precedent to the exercise of the discretion conferred by s.596(2). The satisfaction of any of the requirements in s.596(2)(a) to (c) does not of itself dictate that the discretion is automatically to be exercised in favour of granting permission.

While a decision to grant or refuse permission for a party to be represented by a lawyer or paid agent is an interlocutory decision, it is not properly characterised as a mere procedural decision. As Flick J observed in Warrell v Watson:

'It is a decision which may fundamentally change the dynamics and manner in which a hearing is conducted.'

For completeness we would note that the power to grant or refuse permission for legal representation in s.596(2) does not carry with it the power to select who that legal representative would be, either by reference to the individual identity of the lawyer or whether the lawyer is a barrister or solicitor, nor does it empower the Commission to choose which member of a party's legal team might represent the party in proceedings." (footnotes omitted)

[15] Caddy say that the jurisdictional issue raises a complex matter of mixed fact and law concerning what conduct constitutes "termination at the employer's initiative" or a "forced" resignation within the meaning of section 386. It also wishes to make a submission that a compensation order cannot be made if it is premised on a claim that could be made under the Return to Work Act 2014 (SA).

[16] Mr Constable opposes the request on multiple grounds. He says that it would be unfair as he will be self-represented as he is unable to afford the cost of legal representation. He says that his application raises no technicalities requiring lawyers. He says that the employer could be adequately represented by an external human resource consultant Ms Pentland of 'The HR Room', whose services the employer uses.

[17] In response, Caddy say that Ms Pentland is required to be a witness in this matter as she was directly involved in events concerning Mr Constable in May 2018.

[18] Caddy (or Mr Constable for that matter) can only be represented by a lawyer (or paid agent) at the hearing with permission of the Commission.[4] Whether to grant permission is a discretionary matter made having regard to the factors set out in section 596(2) of the FW Act: efficiency (in the context of the complexity of the matter); fairness (in the context of the capacity of the person seeking permission to effectively represent themselves); and fairness between the parties.

[19] A relevant starting point for the exercise of the discretion is that granting permission should be seen as a departure from the default position that a party in a matter before the Commission must normally appear on its own behalf (to paraphrase the words of Flick J in Warrell). This proposition is consistent with the statutory scheme:

"FWA is intended to operate efficiently and informally and, where appropriate, in a non-adversarial manner. Persons dealing with FWA would generally represent themselves."[5]

[20] I now turn to the considerations in section 596(2).

[21] This matter self-evidently involves a jurisdictional issue concerning whether Mr Constable was dismissed. The competing contentions of repudiation by the employer (on the one hand) and resignation by the employee (on the other) are in issue. It is apparent from the witness statements filed that there are factual matters in dispute that bear on that question. It is also apparent that once facts are determined, this question involves a construction of section 386 of the FW Act and potentially other legal issues.

[22] I am satisfied that resolving this jurisdictional issue is a mixed question of fact and law, and that determination of both the factual and legal issues involve some complexity.

[23] I agree with the general observation of the Commission in CEPU v UGL Resources Pty Ltd where it was said:[6]

"...where the Respondent (in this case) seeks to agitate a jurisdictional issue then it would follow that representation by a lawyer would be a reasonable course. Jurisdictional issues by their nature are prospectively complex in their own right, and/or else may require a degree of familiarity with court and tribunal jurisprudence or authorities."

[24] I am satisfied that legal representation will assist with the jurisdictional matters at issue in these proceedings being dealt with more efficiently having regard to their complexity.

[25] Section 596(2)(a) is made out.

[26] The fact that sub-section (1) of section 596 is made out does not compel the exercise of discretion in favour of the person requesting permission.[7] All factors in the section need to be considered, including fairness, although not all factors need be made out.

[27] Sub-sections 596(2)(b) and (c) require fairness to be considered in two contexts: fairness in the context of the capacity of the person seeking permission to effectively represent themselves; and fairness between the parties.

[28] Caddy has no in-house expertise or experience in employment matters, industrial law or advocacy. It utilises an external human resource consultant Ms Pentland of 'The HR Room' to help manage and advise on employment matters.

[29] Mr Constable says that Caddy could and should use Ms Pentland to represent it in this matter. There are two responses to this.

[30] Firstly, it is not the Commission's role to determine who the representative of a party is or should be.[8] The Commission's role is only to determine whether permission should be granted.

[31] Secondly, in this matter, Ms Pentland is to be a witness. A witness statement of some length under her name had been filed. Her evidence concerns factual matters requiring determination. Although I recognise that Mr Constable is in the same position (and I consider that in the context of fairness between the parties), it is not generally consistent with a party being able to effectively represent themselves for that party to be represented through the advocacy of their primary witness or a witness whose evidence is material to a factual dispute of significance.

[32] Having regard to the overall circumstances, I find that Caddy would be unable to represent itself effectively if permission is not granted.

[33] Section 596(2)(b) is made out.

[34] I now turn to sub-clause 596(2)(c) of section 596. This sub-section requires the Commission to take into account fairness between the person seeking permission (Caddy) and other persons in the matter (Mr Constable). This consideration does not support Caddy's request and is not made out.

[35] Mr Constable is not legally qualified and has no specific background or expertise in industrial or legal matters. He intends to be self-represented at the hearing because he considers the cost of representation is prohibitive. He is simply a lay person seeking to exercise his unfair dismissal rights. He too has to be witness and advocate.

[36] Having regard to fairness between the parties, it would not be unfair to refuse the employer's request.

[37] The considerations of efficiency in the proceedings and effective representation by the employer weigh towards a grant of permission under section 596.

[38] The issue of fairness between the parties weighs against such a grant.

[39] In exercising the discretion each factor in section 596(2) does not have to be made out although each should be considered.

[40] I am satisfied that permission should be granted particularly having regard to the fact that the hearing is a jurisdictional hearing considering mixed issues of fact and law.

[41] However, I will impose conditions on the grant of permission that take into account fairness between the parties. They are:

1. Should it be necessary, I will, consistent with my independent role as a statutory decision-maker, intervene directly during the proceedings and provide an appropriate level of guidance to Ms Constable on the conduct of proceedings and the taking and testing of evidence, so as to be satisfied that he is able to understand the issues, present his case and test that of the employer; and

2. Should circumstances alter or if I form the view that the employer's legal representative is not contributing to the efficient conduct of proceedings, I will consider whether the grant of permission should be revoked.

[42] Sections 397, 398 and 399 of the FW Act are relevant to determining the mode by which I will determine Mr Constable's application.

The FWC must conduct a conference or hold a hearing in relation to a matter arising under this Part if, and to the extent that, the matter involves facts the existence of which is in dispute.

(1) This section applies in relation to a matter arising under this Part if the FWC conducts a conference in relation to the matter.

(2) Despite subsection 592(3), the FWC must conduct the conference in private.

(3) The FWC must take into account any difference in the circumstances of the parties to the matter in:

(b) informing itself in relation to the application.

(4) The FWC must take into account the wishes of the parties to the matter as to the way in which the FWC:

(1) The FWC must not hold a hearing in relation to a matter arising under this Part unless the FWC considers it appropriate to do so, taking into account:

(b) whether a hearing would be the most effective and efficient way to resolve the matter.

(2) If the FWC holds a hearing in relation to a matter arising under this Part, it may decide not to hold the hearing in relation to parts of the matter.

(3) The FWC may decide at any time (including before, during or after conducting a conference in relation to a matter) to hold a hearing in relation to the matter."

[43] Mr Constable says that determination by conference would be more informal, and as a self-represented applicant, more conducive to the effective presentation of his case.

[44] Caddy say that the factual differences between the parties require fact-finding which is best undertaken through the witness box in a formal courtroom setting. It says that this would be the most effective and efficient way to deal with the matter.

[45] I take into account the statutory scheme which provides that determination by hearing should "not" be held unless the Commission considers it appropriate after taking into account the views of the parties and whether that course "would be the most effective and efficient".

[46] I have heard the views of the parties.

[47] I am cognisant of the fact that Mr Constable is self-represented. I give weight to that fact. I do so particularly in the context of this decision wherein I have granted permission to Caddy to be represented by a legal practitioner. As noted by the Commission in Asciano Services Pty Ltd v Hadfield:

"The more informal procedures of a determinative conference may be more appropriate for a self-represented litigant..."[9]

[48] I consider there to be no inherent reason why a legal practitioner representing a party needs to do so from the familiarity of a courtroom. The fact that Caddy is to be so represented, with permission, is not a reason for not conducting proceedings by conference.

[49] The more substantive issue is whether the nature of these proceedings is more effectively conducted through evidence in conference or evidence in the witness box.

[50] Neither option is unworkable. Just how extensive the factual conflicts are remains to be seen, as well as whether their resolution involves matters of credit or recall. While factual issues in dispute are readily tested through the orthodox setting of a witness box, a properly structured conference still provides for the giving and testing of evidence by examination and cross examination, even though proceedings are conducted more informally.

[51] I will list the matter for determination by conference, at least in the first instance.

[52] Consistent with the provisions of section 399(3) of the FW Act and the power to inform myself in such manner as I consider fit (section 590(1) FW Act), should I consider it appropriate at any stage of proceedings to proceed by way of hearing rather than conference I will inform the parties, seek their further views and make a further determination.

[53] This application remains listed for determination commencing on 4 September 2018, as set out in my directions of 25 July. That determination will, in the first instance, be by conference.

4WD Accessory Wholesale Pty Ltd T/A Caddy Adelaide, by Mr J Abbott O'Loughlins Lawyers, 12 July 2018 and 21 August 2018

[2] Written Submissions of the Respondent 21 August 2018 paragraph 23

[3] [2018] FWCFB 4362 at [35] - [38], 31 July 2018

[4] Section 596(4) does not apply in this matter

[5] Explanatory Memorandum to the Fair Work Bill 2008 at paragraph 2291

[6] [2012] FWA 2966 per Senior Deputy President Richards at [23]

[7] Warrell v Fair Work Australia [2013] FCA 291 at [24]

[8] NSW Bar Association v McAuliffe [2014] FWCFB 1663 at [32]

[9] Asciano Services Pty Ltd v Hadfield [2015] FWCFB 2618 at [20]

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