Fair Work Act 2009

s.394 - Application for an unfair dismissal remedy

Craig Aubrey McGilvery trading as Choc Dee Thai Restaurant

Application for unfair dismissal remedy - objection to application for legal representation - section 596 representation by lawyers and paid agents - section 596(2)(a) satisfied - representation granted.

[1] This decision relates to an unfair dismissal application filed by the Applicant, Mr Ratachapol Pewsukngem, pursuant to section 394 of the Fair Work Act 2009 (Cth) (the Act). Mr Craig Aubrey McGilvery trading as Choc Dee Thai Restaurant (the Respondent/ the Employer) made an application to be represented pursuant to section 596 of the Act by Mr Jamie McAlister, solicitor of WGC Lawyers. The Applicant raised an objection to the Respondent having legal representation in this matter. The Applicant is self-represented in these proceedings. This decision only relates to the matter of legal representation.

[2] The solicitor for the Respondent filed a form F53 applying for permission to be granted legal representation. Pursuant to Directions, he provided submissions in support of the application. The Applicant objected to the legal representation but failed to provide submissions in accordance with the Directions. The positions of both parties have been taken into account.

[3] The Respondent operates a Thai restaurant in Port Douglas, Far North Queensland. The parties are in agreement that the Employer meets the definition of a Small Business employer (employing less than 15 employees) under the Act.

[4] The Applicant is self-represented but has a support person who has recorded an appearance and intends to assist with the representation of the Applicant. An interpreter has been confirmed for the arbitration at the request of the Applicant. Both the support person and the Applicant have indicated they have made inquiries but to date have not retained legal representation.

[5] The matter is being heard at the Cairns courthouse in the next week. A directions conference was held last week. A range of matters were raised between the parties relevant to the hearing, including that the Applicant in his reply material, today filed new evidence. There will now be multiple witnesses with new evidence. Given the increased number of witnesses, it will be necessary for the Respondent, with limited time prior to the hearing, to respond to the evidence. Efficient cross examination of the Applicant's witnesses will be required to deal with the matter now on the listed date. The commencement time of the hearing has also been adjusted to start earlier in order that all of the evidence can be completed in Cairns.

[6] This matter involves allegations of sexual harassment and alleged deficiencies in terms of the substantive reasons for the dismissal and the procedural fairness afforded to the Applicant.

[7] The employer indicated that in terminating the Applicant's employment, he has complied with the Small Business Fair Dismissal Code and relies on such as a jurisdictional objection. The Employer had not provided a witness statement in the proceedings as the decision maker in the termination of the Applicant's employment. An Order for the attendance of the Employer to appear as a witness at the Hearing was issued today.

[8] The matter involves some complexity, in terms of an examination of the evidence, related to the basis for the dismissal, the alleged sexual harassment by the Applicant and the procedure undertaken by the employer to be examined against the Small Business Fair Dismissal Code. Further, the management of the witness evidence including further new evidence (filed at a late stage on behalf of the Applicant) and the inclusion of the interpreter at the Hearing, assisting where required, with that evidence.

[9] Accordingly, it is considered that the inclusion of legal representation will assist with the efficient management of the witness evidence and documents.

[10] The relevant provisions of the Act are set out in s.596(1) and (2):

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.

• [11] The Commission only needs to find that one of the sub-sections in section 596(2) above is satisfied to exercise the 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.[1]

[12] The Respondent has sought permission pursuant to sections 596(2)(a) or (b), or (c).

• [13] In relation to the grounds of efficiency and complexity, the Respondent has referred to the view of Deputy President Sams that in most cases of complexity, representation will be of assistance to the Commission.[2] The Respondent in this matter relies upon a number of allegations to substantiate the unfair dismissal and the Applicant has foreshadowed they dispute these reasons as a matter of fact. Further, the Respondent has made a jurisdictional objection on the ground of the Small Business Fair Dismissal Code being complied with. The Respondent's submissions argue that representation will enable the factual disputes to be dealt with efficiently, and to focus the dispute on issues relevant to the Commission's determination.[3]

• [14] Deputy President Sams set out generally, in relation to legal representation that:[4]

'...the prospects of a case being run more efficiently and focused on the relevant issues to be determined is more likely where competent legal representation is involved.'

[15] The Explanatory Memorandum to the Fair Work Bill's introduction in 2008 relevantly reads as follows:

"2291. FWA is intended to operate efficiently and informally and, where appropriate, in a non-adversarial manner. Persons dealing with FWA would generally represent themselves. Individuals and companies can be represented by an officer or employee, or a member, officer or employee of an organisation of which they are a member, or a bargaining representative. Similarly, an organisation can be represented by a member, officer or employee of the organisation. In both cases, a person from a relevant peak body can be a representative.

2292. However, in many cases, legal or other professional representation should not be necessary for matters before FWA. Accordingly, clause 596 provides that a person may be represented by a lawyer or paid agent only where FWA grants permission.

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

• [16] The application of section 596 of the Act allows the Commission to exercise discretion to grant permission for legal representation in proceedings, however, this is not automatic. The discretion afforded to the Commission will be exercised on the facts and circumstances of the particular case, against the legislative tests[5] and a consideration of fairness between the parties.

• [17] In ASC Pty Ltd v AWU, Deputy President Gostencnik observed that:[6]

"...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."

• [18] In considering the grant of legal representation, the Commission is required to establish that the prescribed conditions exist prior to exercising the discretion to grant permission.[7] Accordingly, if the prescribed conditions are considered to be in existence, the discretion to grant permission for a person to be represented by a lawyer or paid agent will be exercised in favour of the party. This assessment of the prescribed conditions is an objective exercise. The submissions of both parties on legal representation have been taken into account and weighed against the factual matrix and context of the matter.

[19] There is some complexity in the current matter, as the matter involves an assessment of the facts and evidence in relation to a series of allegations of sexual harassment against the legislative definitions. The Applicant disputes these allegations and has brought new counter evidence in his reply material.

[20] Direct evidence from the Employer was filed in relation to the completion of the Small Business Fair Dismissal Code for the reasons for implementing the employee survey related to an inquiry about alleged sexual harassment conduct at the workplace and what reliance was placed on that in determining the termination of the Applicant's employment. Evidence regarding the related dismissal procedure used is also required. Accordingly, to assess compliance with the Small Business Fair Dismissal Code, an Order for the Employer to attend at the hearing to provide evidence has been issued.

[21] With respect to the issue of fairness between the parties, the Commission's role is to provide a fair process and accordingly the Commission has control of the process and the conduct of these proceedings. This is a matter where Directions have been set to enable the filing of material pertaining to the issues central to the unfair dismissal application.

[22] Taking into account all of the circumstances, it is considered that legal representation will assist the efficient conduct of the matter to allow for the consideration of the matters relevant to the allegations in an orderly manner, noting there is some complexity to the matter (across the series of documents and witnesses). It is recognised that the Applicant is self-represented, and this will be given appropriate consideration to ensure a fair process is afforded at the Hearing. A consent process was put in place (arising from the directions conference) to enable the Applicant to seek procedural guidance from my Associate.

[23] Therefore, to assist in the efficient conduct of the matter before the Commissioner, in the circumstances of some complexity, the Respondent, pursuant to section 596(2)(a) of the Act, is granted permission to be represented by a lawyer at the Hearing for this matter.

[24] Taking into account all of the matters as set out, permission is granted to the legal representative of the Respondent pursuant to section 596 (2)(a). In addition, to enable the relevant evidence in this matter to be assessed, and to afford the Applicant the right of cross-examination of the Employer, an Order for the Employer's attendance at the hearing has been issued separately today.

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

[2] Applicant v Respondent [2014] FWC 2860 at [20]; see also [2021] FWC 3178 at [34].

[3] Applicant v Respondent [2014] FWC 2860 at [18], [27].

[4] Applicant v Respondent [2014] FWC 2860 at [20]; see also [2021] FWC 3178 at [34].

[5] Rodgers v Hunter Valley Earthmoving Company Pty Ltd [2009] FWA 572.

[6] [2014] FWC 544 at [16].

[7] [2021] FWCFB 268.

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