Fair Work Act 2009

Section 394 - Application for unfair dismissal remedy

Application for an unfair dismissal remedy - permission to be represented - section 596 FW Act - efficiency - complexity - fairness - permission granted

[1] D.A. (the Applicant) has filed an unfair dismissal application in the Commission under section 394 of the Fair Work Act 2009 (FW Act) seeking a remedy for an alleged unfair dismissal from his employment with Baptist Care (SA) Incorporated (Baptist Care or the Respondent).

[2] Pre-hearing procedures to date have led to the following:

1. A direction anonymising the identity of the Applicant;[1]

2. A Decision and Order that a third party, PsychCheck, produce documents to the Applicant through the agency of his nominated psychologist;[2]

3. A Confidentiality Order relating to documents, evidence, submissions, audio recording and transcript concerning the application;[3] and

4. Directions relating to the hearing and determination of the matter.[4]

[3] Baptist Care oppose the application and have raised a jurisdictional issue, being that the Applicant was not dismissed.

[4] The matter is set down for hearing and determination of the jurisdictional issue, merits and remedy on 10 and 11 March 2020.

[5] This decision concerns legal representation at the hearing and determination of the matter.

[6] Background facts to the application by D.A. are set out in my Production Decision of 15 November 2019.[5]

[7] Further facts relevant to the representation issue are set out below.

[8] D.A.'s application dated 19 August 2019 was filed under his own hand.

[9] On 10 September 2019 a lawyer acting for Baptist Care formally came onto the Commission file.[6]

[10] On 30 September 2019 a lawyer acting for D.A. formally came onto the Commission file.[7]

[11] At a directions hearing on 2 October 2019 I granted permission, by consent, for the Applicant and Respondent to be represented by a lawyer in interlocutory proceedings on the application, with the issue of representation at the hearing and determination to be determined at a later date.

[12] My directions of 18 December 2019 required both the Applicant and the Respondent to file materials concerning representation by 7 February 2020 (in support) and 14 February 2020 (in opposition).

[13] Submissions seeking permission were filed by Baptist Care (7 January) and D.A. (13 February). No submissions in opposition were, at that time, filed.

[14] In advance of deciding the representation issue, D.A. advised the Commission on 4 March 2020 that his circumstances had changed, that he would no longer be represented by a lawyer due to financial reasons, that he would be self-represented at the hearing assisted possibly by a support person, and that he now opposed permission being granted to Baptist Care.

[15] On 4 March 2020 lawyers for D.A. filed in the Commission a Notice of Ceasing to Act.[8]

[16] I convened a directions hearing on 5 March 2020 at which time D.A. made an oral statement opposing permission. Baptist Care made an oral submission in support of granting permission. I granted D.A. leave to file a late written statement in opposition by 12 noon on 6 March 2020, which he has done in a timely manner.

[17] I determine this question having regard to the oral and written submission made.

[18] 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

[19] Baptist Care submit that these proceedings involve complexity arising from the jurisdictional issue as well as other matters arising including contractual obligations held by the Respondent to two third parties being the Minister for Child Protection and a contracted organisation PsychCheck, and legal obligations under the Children and Young People (Safety) Act 2017 (SA).

[20] Further, Baptist Care foreshadowed a challenge to any fresh expert evidence that seeks to look behind a report prepared by PsychCheck upon which it says it relied.

[21] The jurisdictional issue appears to concern whether D.A. was dismissed in light of the Respondent's claim that D.A. was employed in two roles and continues to perform one of those roles.

[22] Baptist Care submit that proceedings will be more efficiently conducted on each of these issues, as well as the taking of evidence or expert evidence, if they are represented by a lawyer.

[23] Baptist Care also submit that it would be unfair to refuse permission as it claims that its human resource officers have no specialist expertise in contested tribunal advocacy or these legal issues.

[24] D.A. submits that it would be unfair for Baptist Care to be legally represented in circumstances where he is now self-represented. He says this will create an imbalance in the proceedings that may prejudice his case.

[25] D.A. also submits that Baptist Care is a sizeable employer with a dedicated human resource division which could represent the Respondent especially given the legal assistance it has received thus far.

[26] He acknowledges that the case involves some complexity but that issues of fact and procedural fairness are not complex. Whilst opposing permission at large, in the alternative he says that one option available to the Commission would be to limit the Respondent's permission to the complex matters only.[9]

[27] Baptist Care can only be represented by a lawyer with permission of the Commission.[10]

[28] The granting of permission under section 596 involves a two-step process. The first is that at least one of the criteria in section 596(2) needs to be satisfied. The consideration required by this first step "involves the making of an evaluative judgment akin to the exercise of discretion."[11] The second is that the discretion, if exercised, must be exercised in favour of the applicant for permission[12] in the sense that the discretion concerns whether to grant permission, not whether to deny or withdraw an established right.

[29] I agree with D.A. that the 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 proceedings before the Commission must normally appear on its own behalf.[13] 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."[14]

[30] I now turn to consider 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.

[31] This matter entails the determination of at least one jurisdictional objection and, in the context of merits and remedy, a number of additional matters. Those matters, including contractual obligations held by Baptist Care to the Minister for Child Protection and to PsychCheck, and related legal obligations under the Children and Young People (Safety) Act 2017 (SA), lead me to conclude that this is a complex matter.

[32] I have yet to determine whether leave should be granted to D.A. to file a late statement from his treating psychologist. Determining that question also involves a degree of complexity, given the submission foreshadowed by Baptist Care that proceedings by way of judicial review are the more appropriate course to test opinions expressed by PsychCheck or other experts. In any event, should leave be granted, I am satisfied that cross examination of D.A.'s treating psychologist would be more efficiently conducted by a lawyer.

[33] Having regard to those complexities, these proceedings will be more efficiently conducted if a party is represented.

[34] Section 596(2)(a) is made out and supports the granting of permission.

[35] 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.

[36] The Respondents say denying them representation would be unfair as it would leave its case to be presented by officers of its human resources department.

[37] Whilst I take into account D.A.'s submission that Baptist Care's human resources department has experience and resource, there is a material difference between human resource management and contested industrial arbitration involving factual and legal matters.

[38] I am satisfied that whilst Baptist Care's human resource officers would be able to present a case, the Respondent would be unlikely to represent themselves effectively in the context of the complex issues arising in this matter. It would be unfair to require them to do so in circumstances where they seek representation.

[39] The considerations in section 596(b) weigh somewhat in favour of a grant of permission.

[40] Section 596(c) concerns unfairness between persons in the matter.

[41] There would be a clear imbalance in representation should permission be granted given the late withdrawal, for understandable reasons, of D.A.'s legal representative. D.A. is not a person with a legal or advocacy background, and even with the help of a support person, is likely to be at a material disadvantage if Baptist Care is legally represented. The significance of that imbalance is heightened in a matter such as this where complex factual and legal issues arise.

[42] Section 596(2)(c) is not made out. The potential unfairness to D.A. is a reason for not granting permission.

[43] In exercising the statutory discretion each factor in section 596(2) does not have to be made out although each must be considered.[15]

[44] I have found that it would be more efficient to grant permission to the Respondents owing to the complexity of the matters in issue.

[45] I have also found that there would be a level of unfairness if the Respondents were required to be represented by internal human resource officers.

[46] I have found that material unfairness arises to the Applicant D.A. should permission be granted.

[47] Taking these matters into consideration, I am satisfied that it is appropriate to exercise the statutory discretion to grant permission to Baptist Care to be represented by a lawyer. I reach this conclusion largely on account of the complexities arising in this matter and the likelihood that legal representation will assist the efficient conduct of proceedings.

[48] I have carefully considered the fall-back suggestion made by D.A. that the Commission should limit the Respondent's permission to the complex matters only. Whilst the suggestion is helpful, I do not consider it practical, for two reasons.

[49] Firstly, the legal matters creating complexity pertain to a central issue of fact and law, that is whether there was a valid reason for dismissal. Depending on how the parties ultimately put their case, they may also pertain to issues of procedural fairness or at least the adequacy of steps taken by the employer when engaging with D.A. prior to or at the time of the alleged dismissal. There is no clear delineation as to those parts of these proceedings where the complex issues may start and finish. Baptist Care is entitled to advance its case as it frames it - as is D.A.

[50] Secondly, turning representation on and off during the hearing (even if the subject matter delineation were clear) is likely to create an artificial environment restricting the Commission's capacity to efficiently deal with issues as they arise (for example, once D.A. has secured a late statement from his treating psychologist, the admissibility of that statement).

[51] It nonetheless remains a matter of importance that any potential prejudice to D.A. arising from Baptist Care being legally represented is minimised if not avoided altogether. The Commission will take the following three steps in this respect.

[52] Firstly, the Workplace Advice Service, facilitated by the Commission will, insofar as is possible, be made available to D.A. should he require assistance, even at this late stage prior to hearing.

[53] Secondly, permission will be granted on the condition that I will provide D.A. and any support person accompanying him a reasonable level of assistance and guidance to ensure that his evidence and submissions are presented and that he is able to test the submissions and evidence of Baptist Care. I will do so in a manner consistent with my statutory obligations as an independent statutory office holder.

[54] Thirdly, permission will be granted on the condition that I may subsequently withdraw that permission (after hearing the parties) if it becomes apparent that representation is not assisting the efficient or fair conduct of the proceedings.

[55] For these reasons, and on these conditions, permission is granted under section 596 of the FW Act to Baptist Care to be represented at the hearing and determination of this matter.

[56] D.A's application remains listed for hearing at 10.00am (ACDT) 10 March 2020.

K. Eaton with D Hunt, with permission, for the Respondent.

[2] Decision [2019] FWC 7358 15 November 2019 and Order PR712911

[5] [2019] FWC 7358 at [8] to [21]

[9] Written Submission 6 March 2020 paragraph 6

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

[11] Asciano Services Pty Ltd v Hadfield [2015] FWCFB 2618 at [19]

[12] Calleri v Swinburne University of Technology [2017] FWCFB 4187 at [36]

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

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

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

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