Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

S.596(2) - Application for permission to be legally represented in unfair dismissal - whether matter will be dealt with more efficiently taking into account the complexity of the matter - exercise of discretion - whether it would be unfair not to allow employer to be legally represented because it is unable to represent itself effectively.

[1] Mr Christopher Whitton has filed an application alleging that he was unfairly dismissed. The respondent employer, the Commonwealth Bank of Australia (CBA), opposes the unfair dismissal application and seeks to be legally represented in the forthcoming hearing, pursuant to s.596 of the Fair Work Act 2009 (the Act).

[2] Solicitors for CBA filed a Form F53 giving notice that they act for the respondent, along with written submissions as to why permission to represent CBA pursuant to s.596 of the Act should be granted.

[3] The applicant employee Mr Whitton currently represents himself in this matter.[1]

[4] Mr Whitton was invited to provide a response to the request of CBA to be legally represented in this matter and has responded stating that he strongly objects to legal representation being granted.

[5] The parties were informed that the issue of legal representation would be dealt with on the papers unless any party requested the matter be listed for a hearing. Neither party requested that the matter of legal representation be listed for a hearing.

[6] Mr Whitton stated that he is disputing the procedural fairness of the workplace investigation that led to his dismissal and that he cannot 'fathom' the justification, despite the submissions of CBA, of why the country's largest financial institution would consider it fair and reasonable to obtain outside legal representation.[2]

[7] Mr Whitton rejected the notion that any of the matters concerned in his application were complex as he does not dispute the majority of the matters concerned. His application is said to be made with regard to the procedural fairness of the investigation and the decisions made.[3]

[8] It was submitted by Mr Whitton that:

• (a) the matter is not complex, nor would outside counsel be necessary for efficiency,

• (b) CBA has sufficient in-house staff to represent itself; and

• (c) taking into account the fairness between CBA and himself, it would be unfair to allow CBA legal representation.

[9] Mr Whitton also submitted that CBA's in-house counsel has sufficient reading and writing skills and that CBA has an exceptionally large and competent human resources department.[4]

[10] CBA submitted that the Commission only needs to be satisfied of one of the three grounds in s.596(2) before it can exercise its discretion to grant permission for legal representation, and seeks permission on the following grounds:

• (a) representation will allow the matter to be conducted more efficiently; and

(b) it would be unfair to require CBA to represent itself as it is unable to do so effectively.[5]

[11] CBA acknowledged that the applicant does not have legal representation, and as such fairness between the parties (s.596(2)(c)) does not require the CBA to be represented.[6]

S.596(2)(a)

[12] CBA submitted that the Commission must be satisfied that legal representation would enable the matter to be dealt with more efficiently taking into account the complexity of the matter. In this regard it was put that the applicant's employment was terminated because he engaged in multiple instances of misconduct, ranging from the misuse of a corporate credit card to breaching CBA's policy on the acceptable use of technology.

[13] CBA submitted that the applicant appears to rely on a range of issues extraneous to the misconduct for which his employment was terminated, and the relevance of these issues to the proceedings was not immediately apparent.[7]

[14] The factual complexity of the proceedings is said to be further evidenced in the extensive investigation process carried out by CBA to identify the applicant's misconduct.[8]

[15] CBA submitted that given the complexity of the matter both in terms of the range of issues presented by the applicant and the extensive factual matters involved, legal representation will enable the matter to be dealt with more efficiently, by focussing the proceedings on the salient issues.[9]

[16] CBA further submitted that it is anticipated that CBA will wish to cross-examine the applicant, and legal representation will allow for the efficient examination of the applicant to be limited to the relevant issues.[10]

S.596(2)(b)

[17] CBA submitted that it would be unable to effectively represent itself, having regard to the resources required to prepare and respond to the matter properly and efficiently given the specific circumstances of CBA's legal team.[11]

[18] CBA submitted that its legal team currently comprises of eight employment solicitors who are responsible for providing employment law advice and assistance across the whole of CBA and the broader Commonwealth Bank Group, which encompasses over 48,000 staff within Australia and overseas.[12]

[19] It was submitted that CBA's legal team also supports a number of large internal projects, and four members of the team are currently primarily dedicated to projects. Further, it was submitted that none of the members of CBA's employment legal team have recent experience in appearing in contested matters before the Commission, other tribunals, or courts.[13]

[20] CBA submitted that there is a considerable volume of work required to ensure that it is properly prepared for, including preparation for examination-in-chief, cross-examination, preparation and delivery of submissions and consideration of various authorities, and that as the day-to-day demands placed on CBA are high, it is appropriate for CBA to obtain external legal assistance to ensure that it is properly represented in respect of a contested unfair dismissal hearing.[14]

[21] CBA submitted that the matter is complex having regard to the range of conduct giving rise to the termination of the applicant's employment, and that evidence of this misconduct must be considered by the Commission notwithstanding the applicant's contention to the effect that he may not dispute all of this conduct.[15]

[22] Section 596(2) of the Act is the relevant section that must be applied in determining applications such as this. The section states:

"(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."

[23] As submitted by CBA the Commission only needs to find that one of the sub-sections above is satisfied to exercise its discretion to grant permission for a party to be represented. The satisfaction of one of these conditions is not determinative but enlivens the Commission's discretion as to whether permission to be represented should be granted.[16]

[24] The principles to be applied when determining these applications were considered in Warrell v Walton[17] and subsequently adopted by a Full Bench of the Commission in New South Wales Bar Association v McAuliffe.[18]

[25] In Warrell, Flick J said, at [24]:

"A decision to grant or refuse "permission" for a party to be represented by "a lawyer" pursuant to section 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 section 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 section 596(2) have been taken into account and considered. The constraints imposed by section 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 section 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 section 596(2): i.e., "FWA may grant permission...". The satisfaction of any of the requirements set forth in section 596(2)(a) to (c) thus need not of itself dictate that the discretion is automatically to be exercised in favour of granting "permission."

[26] In Wellparks Holdings Pty Ltd t/as ERGT Australia v Mr Kevin Govender,[19] the Full Bench stated at [48]:

"The assessment of whether permission should be granted under s 596 involves a two-step process. The first step is to consider whether one or more of the criteria in s 596(2) is satisfied. The consideration required by this first step 'involves the making of an evaluative judgment akin to the exercise of a discretion'. It is only where the first step is satisfied that the second step arises, which involves a consideration as to whether in all of the circumstances the discretion should be exercised in favour of the party seeking permission."

S.596(2)(a)

[27] Under s.596(2)(a), the Commission must have regard to the complexity of the matter when assessing the efficiency that would result from legal representation.[20]

[28] In ASC Pty Ltd v The Australian Workers' Union and others;[21] Gostencnik DP stated:

"[16] In any event the question, for the purposes of granting permission for the reasons set out in section 596(2)(a) of the Act, is not whether ASC can be represented or even effectively represented by in-house resources, rather the relevant question is whether, taking into account the complexity of the matter, the grant of permission to ASC to be represented by a lawyer (in this case one experienced in advocacy and industrial law) would enable the matter to be dealt with more efficiently. The in-house capacity of ASC has a bearing on that assessment but I am satisfied that in this case the grant of permission to ASC for external legal representation will have that result."

[29] In this matter, CBA has submitted that the matter is complex having regard to the range of conduct giving rise to the termination of the applicant's employment, the factual complexity of the investigation process that was undertaken, and the range of extraneous issues raised by the applicant.

[30] CBA's submissions in this matter identify eight categories of conduct leading to the applicant's termination, ranging from the misuse of a corporate credit card to breaching CBA's policy on the acceptable use of technology. CBA's defence to the application includes that a comprehensive investigation took place.

[31] In King v Patrick Projects Pty Ltd,[22] with reference to Urbanski v MSS Security Pty Ltd,[23] the Full Bench stated:

"[15] The complexity of the subject matter of the proceedings is the key consideration under s.(596)(2)(a) of the Act. In Urbanski v MSS Security Pty Ltd it was found that, even if legal representation would enable a matter to be dealt with more efficiently, a lack of complexity in the matter may still mean that permission to appear is declined."

[32] Regarding complexity, the Full Bench further stated:

"[17] We do not find that this matter is one that can be characterised as complex. The Members of the Commission routinely deal with applications which are voluminous in size and riddled with materials extraneous to the application. This commonplace occurrence does not constitute legal or factual complexity. Sheer volume of documents or the existence of extraneous issues to the application will not in and of itself equate to complexity for the purposes of s.(596)(2)(a) of the Act."[24]

[33] Having regard to material submitted to date and on the specific facts and circumstances of the matter, I am not satisfied that legal representation on behalf CBA would enable the matter to be dealt with more efficiently, taking into account the complexity of the matter.

[34] Invariably, legal representation is of assistance to the Commission, however that is not the sole criteria that must be considered under s.596(2)(a). The Commission must take into account the complexity of the matter.

[35] CBA has filed three witness statements and there are no jurisdictional or interpretation issues or other complex matters that the Commission must deal with. It does not appear that there are significant facts in dispute, but rather that the applicant seeks to rely upon the alleged the procedural unfairness regarding the investigation and the decision to terminate his employment.

[36] Whilst there is a range of categories of misconduct relied on by CBA for the decision to dismiss Mr Whitton, which was allegedly preceded by a detailed investigation, it has not been demonstrated to the Commission's satisfaction that there is sufficient complexity to warrant the granting of permission under s.596(2)(a).

S.596(2)(b)

[37] In considering whether it would be unfair not to allow CBA to be represented because it is unable to represent itself effectively, the onus rests with CBA.[25]

[38] CBA has submitted that it has eight in house employment solicitors in its legal team who provide advice and assistance to CBA and the broader Commonwealth Bank Group.

[39] It is a decision for CBA whether its solicitors are best utilised on other work within the business and not in representing itself before the Tribunal, but that of itself does not result in a conclusion that it would be unfair not to allow legal representation because they are unable to represent themselves effectively.

[40] Further, while it may be, as submitted by CBA, that members of its legal team have no 'recent' experience in dealing with contested matters before the Commission, it is not contended that they have no experience. In any event, CBA has not satisfied the Commission as to why it cannot effectively represent itself utilising other persons employed elsewhere within its organisation including its human resources or workplace relations employees.

[41] Moreover, CBA's submission that there is a considerable volume of work involved in preparing for the proceedings, and that the day-to-day demands placed on CBA are 'high', does not establish to the Commission's satisfaction that it would be unfair not to allow external legal representation or that CBA cannot represent itself effectively. Item 2296 of the Explanatory Memorandum to the Fair Work Bill 2008 states that in granting permission pursuant to s.596 of the Act, the Commission "would have regard to considerations of efficiency and fairness rather than merely the convenience and preference of the parties."[26]

[42] For the reasons outlined above, the Commission is not satisfied that CBA has met any of the criteria under s.596(2) of the Act for the Commission to exercise its discretion to grant permission for CBA to be legally represented, and as such, permission is not granted.

[1] Although Mr Whitton has informed the Commission by email on 3 June 2021 that he will engage legal representation in the event that the respondent's application for legal representation is approved by the Commission.

[5] Respondent's submissions on permission to appear dated 6 April 2021 at [1-3]

[15] Respondent's reply submissions on permission to appear dated 2 June 2021 at [3-4]

[16] CEPU & Ors v Northern SEQ [2016] FWC 4736 at [13-14]

[17] [2013] FCA 291

[18] [2014] FWCFB 1663

[19] [2021] FWCFB 268

[20] Urbanski v MSS Security Pty Ltd [2012] FWA 1789 at [8]

[21] [2014] FWC 544

[22] [2015] FWCFB 2679

[23] [2012] FWA 1789

[24] [2015] FWCFB 2679

[26] Explanatory Memorandum to Fair Work Bill 2008 at para. 2296; See also Lekos v Zoological Parks and Gardens Board (t/as Zoos Victoria) [2011] FWA 1520 at [41]

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