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[2020] FWC 2309
procedural. Permission for the Respondent (Bowral Concrete Pumping Pty Ltd) to be represented by a lawyer at the Hearing was refused [14]–[15].
The employer sought leave for a lawyer to represent it at an unfair dismissal hearing very shortly before the arbitration, after multiple failures to comply with directions. The Commissioner applied s596 of the Fair Work Act and refused leave because the case was not sufficiently complex to require lawyer assistance, the employer's neglect did not prove inability to self-represent, and allowing late representation would unfairly disadvantage the self-represented applicant.
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2 cited instruments linked from this judgment.
1,682 words · generated 18/06/2026
This interlocutory decision concerned an application by Bowral Concrete Pumping Pty Ltd (the Respondent) for permission to be represented by a lawyer at a forthcoming Fair Work Commission (FWC) arbitration in an unfair dismissal matter brought by Mr Rhys Dudek (the Applicant). The Respondent filed an F53 (application for leave to be represented) very late, on 30 April 2020, after multiple failures to file required documents (Forms F3/F4), failing to attend a preliminary conference, and repeated requests and directions from the Commission [3]. The arbitration was listed to proceed by telephone on 6 May 2020 [3], [17 in procedural history]. The Respondent engaged Daniela Fazio Lawyers about thirty minutes after the Commission enquired whether they intended to act; the law firm then filed the Form F53 on 30 April 2020 [3]. The Applicant opposed the application for leave, stressing the lateness, the Respondent’s repeated non-compliance, and his own inability to afford legal representation [5]. Commissioner Riordan considered the statutory criteria in s596(2) of the Fair Work Act 2009 and refused permission to be represented, concluding none of the three alternative grounds in that provision were satisfied [6], [14]–[15].
The decision is anchored in the statutory test in s596(2) of the Fair Work Act. That subsection provides three separate bases on which the Commission may grant permission: (a) representation would enable the matter to be dealt with more efficiently, considering complexity; (b) it would be unfair not to allow representation because the person is unable to represent themselves effectively; and (c) it would be unfair not to allow representation having regard to fairness between persons in the same matter [6].
Commissioner Riordan dealt with each limb in turn.
s596(2)(a): The Commissioner acknowledged that the Respondent had raised a jurisdictional objection concerning the Small Business Fair Dismissal Code, which somewhat increased complexity. However, the Commissioner observed that such jurisdictional issues are routinely managed by the Commission and did not amount to the type of clear complexity that would ordinarily justify lawyer representation to achieve efficiency. The Commissioner cited a recent FWC decision (Luke McGrath v Sunnyfield Disability Services [2020] FWC 2120) for the proposition that assistance from a lawyer is relevant in cases where identifiable complexity exists, but found that this matter did not present that degree of complexity [8]–[9].
s596(2)(b): The Commissioner rejected the idea that the Respondent's earlier neglect of the process demonstrated incapacity to self-represent. Instead, the lack of engagement was characterised as hesitation or neglect. The Commissioner specifically noted that the Respondent would likely obtain greater practical assistance from an accountant rather than a solicitor, indicating the issues were mainly factual and administrative rather than legally complex [10]–[11].
s596(2)(c): The Commissioner placed significant weight on timing and fairness between the parties. The Respondent sought representation very late in the timeline, and the Applicant was self-represented and of limited means, so it was unlikely the Applicant could secure legal representation to match any advantage gained by the Respondent. Granting leave at that stage would create an unremediable imbalance before the Hearing [12]–[13]. The Commissioner also invoked the statutory obligation to act fairly and justly (s577) and cited Warrell v Fair Work Australia [2013] FCA 291 to note that fairness may, in some circumstances, require denying representation to one party where the other remains unrepresented [12].
On the balance of these considerations, none of the subsections of s596(2) were satisfied, so leave to be represented was refused [14].
Before this decision, s596 provided the statutory test; FWC and federal court authorities had begun to set out how that test should be applied, emphasising that permission is discretionary and rooted in practicality: complexity, effective self-representation, and fairness between parties are the touchstones. This decision applies and clarifies those principles in a commonsense way:
It confirms that routine jurisdictional questions, including those involving the Small Business Fair Dismissal Code, do not automatically create the level of complexity contemplated by s596(2)(a). The Commission must be able to identify a clear and appreciable degree of complexity before concluding that lawyer involvement will make proceedings more efficient [8]–[9].
It reiterates that non-compliance or neglect with procedural directions is not a proxy for incapacity to self-represent under s596(2)(b) [11].
It emphasises fairness in the immediate practical sense: late applications for representation may be refused where they would introduce an unfair and unfixable advantage against a self-represented, resource-constrained opponent [12]–[13].
After this decision practitioners should expect the FWC to: (1) scrutinise claimed complexity to ensure it is more than routine; (2) require objective evidence of inability to self-represent beyond mere sloppiness; and (3) weigh timing and resource asymmetries heavily when representation is sought close to hearing dates.
Paragraph [11]: "The Respondent's neglect of the Application does not establish that he is unable to represent himself. Rather, it shows his hesitation to engage with the Commission's process. I am of the view that the Respondent would be better seeking the assistance of an accountant than a solicitor."
Plain English: The Respondent's failure to follow directions shows carelessness, not inability to speak for himself. The issues look more like bookkeeping or administrative matters where an accountant would help, not legal advocacy.
Paragraph [13]: "The Respondent's application ... has come at the 11th hour. In the context of the Applicant's limited financial resources, it is highly unlikely the Applicant is going to obtain legal assistance. The result of granting the Respondent permission to be represented would create an imbalance between the parties that could not be remedied in the short period of time before the Hearing."
Plain English: Letting the employer bring in a lawyer at the last minute would give them a big advantage the employee cannot match because the employee cannot afford a lawyer and there is not enough time to fix that unfairness.
Paragraph [9]: The Commissioner refers to Luke McGrath to say that while lawyers can often help and make matters more efficient, such assistance is only a relevant factor when real complexity is present.
Plain English: Lawyers are useful, but you need to show the case is genuinely complicated before the Commission will allow a lawyer to appear.
Paragraph [14]: "I am not persuaded that either sections 596(2)(a), (b) or (c) of the Act have been satisfied. As such permission for the Respondent to be represented at the Hearing has been denied."
Plain English: The Commissioner checked each legal reason for allowing a lawyer and found none applied, so the request for a lawyer was refused.
This decision is most directly applicable in situations where:
A party seeks leave to be represented very shortly before a hearing, particularly after failing to comply with directions and participating in procedural steps only belatedly [3], [30 April–1 May events].
The opposing party is self-represented and lacks funds to obtain legal representation [5], [13].
The matters in dispute include routine jurisdictional or factual issues (e.g. Small Business Fair Dismissal Code points) that the Commission regularly determines, rather than novel or highly technical legal questions [8]–[9].
There is an arguable distinction between lack of engagement and inability to represent oneself, where the applicant has simply been non-compliant or dilatory, this decision indicates that such conduct will not ordinarily justify permission under s596(2)(b) [10]–[11].
Such fact patterns should alert practitioners that late applications to appear by counsel are likely to be refused unless accompanied by early evidence of genuine complexity, demonstrable incapacity, or compensatory measures to address fairness between parties.
This decision itself cites two authorities: an FWC decision (Luke McGrath [2020] FWC 2120) and a Federal Court authority (Warrell v Fair Work Australia [2013] FCA 291) [9], [12]. Commissioner Riordan treated Luke McGrath as persuasive on the point that lawyer assistance is relevant only where clear complexity exists, and treated Warrell as supporting the fairness principle that one party's representation while the other remains unrepresented can, in some circumstances, be incompatible with the Commission's duty to act fairly and justly [9], [12]. The decision therefore aligns with existing Commission and Court thinking: the s596 discretion is to be exercised practically, focused on complexity, capacity, and fairness. Practitioners should monitor subsequent FWC decisions for how strictly tribunals enforce timing and fairness considerations and whether courts reviewing such decisions apply the same emphasis on preventing last-minute tactical advantages.
What quantum or quality of 'complexity' will satisfy s596(2)(a)? This judgment reiterates that routine jurisdictional points do not suffice, but further guidance may be required for borderline cases (for example, where mixed questions of fact and law exist, or where complex forensic accounting is coupled with legal issues).
What is the evidentiary threshold to establish inability to self-represent under s596(2)(b)? The Commissioner required more than neglect or lack of sophistication, but did not prescribe the form of evidence that would suffice. Future panels may clarify whether medical evidence, literacy issues, language barriers, or demonstrable cognitive impairment are required to satisfy this limb.
How should a Commission manage short-notice grants of representation to preserve fairness? The decision refused permission because the Applicant could not obtain representation in response in time. It remains to be spelt out whether alternative remedies (adjournment, time-limited stays, bifurcated hearings) might render late representation acceptable in some circumstances.
What role should proportionality play where a small business seeks representation against an employee represented by a union officer or experienced advocate? The Note to s596 mentions small-business contexts, but this decision focused on timing and capacity. How tribunals will balance employer disadvantage due to lack of in-house HR expertise against employee resource disadvantages remains to be refined.
Practitioners should treat this decision as a warning: seek representation early if it is to be relied on; explain and evidence any incapacity to self-represent; and where representation is sought late, propose practical measures (adjournment, timetable adjustments) to preserve fairness and increase the chance s596(2)(c) will be satisfied.
s.394 - Application for unfair dismissal remedy
[1] This decision arises out of an application for a remedy for an alleged unfair dismissal, made pursuant to section 394 of the Fair Work Act 2009 (the Act). On 10 December 2019, Mr Rhys Dudek (the Applicant) filed with the Fair Work Commission (the Commission) an application (the Application) for a remedy in relation to the termination of his employment by Bowral Concrete Pumping Pty Ltd (the Respondent). The matter is scheduled to be arbitrated on 6 May 2020 (the Hearing).
[2] On 30 April 2020, Daniela Fazio Lawyers Pty Ltd filed a Form F53 on behalf of the Respondent. This decision concerns whether the Respondent is to be granted permission to be represented.
[3] Below I have outlined the Application's procedural history:
On 12 December 2020, the Commission wrote to the Respondent providing him with a copy of the Applicant's Form F2. As per Rule 19 of the Fair Work Commission Rules 2013, the Respondent was advised that he had seven days to file a Form F3. The Respondent did not file a Form F3 until 1 May 2020.
On 14 January 2020, the Commission wrote to the Respondent seeking a Form F3.
On 16 January 2020, the Respondent confirmed his email address with the Commission.
On 12 February 2020, a conciliation took place, and the matter was not resolved. I note, the Respondent participated in the conciliation.
On 27 February 2020, the matter was allocated to me for arbitration.
On 28 February 2020, my Chambers wrote to the Respondent seeking a Form F3 and sent the Respondent a Notice of Listing providing that the Commission would hold a preliminary Conference, via telephone, on 3 March 2020.
On 3 March 2020, the Respondent failed to attend the Conference.
On 6 March 2020, my Chambers wrote to the Respondent to ask him to explain his absence from the Conference, to file a Form F3 and to put him on notice that if he failed to file a Form F3 by 4 pm on 10 March 2020, the matter would proceed, and a decision may be issued in his absence.
On 12 March 2020, the matter was listed for Hearing, in person, on 7 May 2020, at Wollongong Court House. At this time the following directions (the Directions) were issued:
1. The Applicant (Mr Rhys Dudek) is directed to file with the Fair Work Commission, and serve on the Respondent, an outline of submissions, witness statements and other documentary material the Applicant intends to rely on in support of their application in this matter by no later than 4.00pm on 2 April 2020.
2. The Respondent (Bowral Concrete Pumping Pty Ltd) is directed to file with the Fair Work Commission, and serve on the Applicant, an outline of submissions, witness statements and other documentary material the Respondent intends to rely on in opposition to the application in this matter by no later than 4.00pm on 23 April 2020.
3. The Applicant (Mr Rhys Dudek) is directed to file with the Fair Work Commission, and serve on the Respondent, any witness statements and other documentary material in reply to the Respondent's witness statements and documents by no later than 4.00pm on 30 April 2020.
"to whom it may my solicitor is Daniella fazio lawyers 9713 7482"
"RE: U2019/13861 - Dudek, Rhys Daniel v Bowral Concrete Pumping Pty Ltd
Lawyers and paid agents must seek permission to appear before the Commission. I have attached a Form F53. If you wish to be represented, your representative must complete and file a Form F53 with Chambers.
Once the F53 has been filed, the Commissioner will determine whether to grant permission.
[4] In the Respondent's Outline of Submissions dated 1 May 2020, the Respondent supported its application to be represented. The Respondent stated;
"13. The Respondent has sought the permission of the Commission to be represented by a lawyer in the matter and at the hearing of the matter.
The Commission has power to give permission for a person to be represented by a lawyer in circumstances where such permission would enable the matter to be dealt with more efficiently and in circumstances where it would be unfair not to allow a person to be represented because the person is unable to represent himself effectively; s596(2)(a) &(b) of the Act.
The writer of these submissions was instructed to act for the Respondent after 5pm on Wednesday 29 April 2020. In less than 48 hours the writer of these submissions has:(a) taken instructions from the Respondent's Director;(b) Prepared and arranged for the execution of the Respondent's Form F3 dated 30 April 2020;(c) Prepared and arranged for the execution of the Respondent's Form F4 dated 30 April 2020;(d) Prepared and arranged for the Respondent's witness statement to be affirmed by its Director;(d) Prepared these submissions;
Regrettably, until the intervention of the writer on behalf of the Respondent, the Respondent's Director was not able to comprehend the seriousness of the Application which he is required to meet, nor does the Respondent's Director (with no disrespect towards the Respondent's Director intended) have skills which would assist the Commission determine the real issues in dispute in these proceedings in a manner consistent with the principals set out in s381 of the Act. This is evident by the Associate to Commissioner Riordan's email to the parties dated 30 April 2020 wherein a chronology of events was set out.
For the above reasons, it is the Respondents submission that the writer ought to be granted permission to appear on behalf of the Respondent at the hearing of these proceedings.
If permission was granted, the writer wishes the Commissioner to note that the writer has Prior commitments on Monday, 4 May 2020 and will not be attending at work so it would be desirable if the Commissioner's Associate could inform the writer whether approval is granted for the writer to appear on behalf of the Respondent prior to 4pm, Friday 1 May 2020."[1]
[5] On 30 April 2020, my Chambers wrote to the Applicant seeking his views concerning the Respondent's application to be represented. The Applicant responded as follows;
"This is responding to your email yesterday, my views about a lawyer representing the respondent, I think he has left it too late to get a lawyer, he has left it until the last week before the final phone conference. He has ignored the rules, as he has had numerous times he didn't submit his evidence on time. Then I thought he had until the 27th to do this, he didn't, then he got until the 30th, still couldn't comply now he gets until may 1st. How many chances should he be allowed? I think it's unfair, because he could've had everything sorted much earlier, he didn't attend the last phone conference call? Is that fine? I just wonder how many chances does he get? I think it's unfair he can get a lawyer to represent himself he obviously has more money than me, as I can't afford a lawyer. He never paid me anything I was owed no annual leave, I just think I deserve what I worked for and what I'm entitled to, I don't know why he wants a lawyer I think it makes no difference because I think he has no defence, what's the difference between him speaking on the phone or his lawyer.
Obviously he doesn't take this thing serious, and hasn't since it started, now what he has realised how close it is and is scrambling to have everything ready, when he should've had it ready, if he cared he would've been prepared. Obviously has no regard for your rules or for anyone"[2]
[6] Section 596 of the Act governs whether a lawyer or paid agent is able to appear before the Commission.
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
(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
[7] Section 596 (1) of the Act determines that a lawyer may only appear with the permission of the Commission. Section 596 (2) of the Act outlines when the Commission may grant permission for a party to be represented. Section 596 (2) of the Act provides three conditions, one of which must be met before the Commission is empowered to grant permission for a party to be represented.
Section 596 (2)(a) - it would enable the matter to be dealt with more efficiently, taking into account the complexity of the matter.
[8] I have read the submissions of both the Applicant and the Respondent. The Respondent has raised the jurisdictional objection that the Applicant complied with the Small Business Fair Dismissal Code. Although this does increase the complexity of the matter to some degree, it is an issue that is routinely dealt with by the Commission. The discrepancies between the party's submissions are largely that they claim the termination occurred in different factual circumstances.
[9] In a recent decision of the Commission in Luke McGrath v Sunnyfield Disability Services [2020] FWC 2120, Commissioner Cambridge stated, at [17];
"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."
As was the case in the above-mentioned matter, this is not an instance in which an appropriate degree of complexity can be identified.
Section 596 (2)(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.
[10] The Respondent's submissions states that;
"the Respondent's Director was not able to comprehend the seriousness of the Application which he is required to meet, nor does the Respondent's Director (with no disrespect towards the Respondent's Director intended) have skills which would assist the Commission determine the real issues in dispute in these proceedings in a manner consistent with the principals set out in s381 of the Act."[3]
[11] The Respondent's neglect of the Application does not establish that he is unable to represent himself. Rather, it shows his hesitation to engage with the Commission's process. I am of the view that the Respondent would be better seeking the assistance of an accountant than a solicitor. As the Applicant is self-represented any difficulties that the Respondent has advocating for themselves, will be shared by the Applicant.
Section 596 (2)(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.
[12] Section 577(a) of the Act mandates that the Commission exercise its powers in a fair and just manner. In Warrell v Fair Work Australia [2013] FCA 291 Flick J, of the Federal Court of Australia, found that in some circumstances this objective is not met by allowing one party to be represented while the other party is not.[4]
[13] The Respondent's application to be represented has come at the 11th hour. In the context of the Applicant's limited financial resources, it is highly unlikely the Applicant is going to obtain legal assistance. The result of granting the Respondent permission to be represented would create an imbalance between the parties that could not be remedied in the short period of time before the Hearing.
[14] As I have outlined above, I am not persuaded that either sections 596(2)(a), (b) or (c) of the Act have been satisfied. As such permission for the Respondent to be represented at the Hearing has been denied.
[15] I so Order.
[1] Respondent's Outline of Submissions dated 1 May 2020 [13] - [18]
[3] Respondent's Outline of Submissions dated 1 May 2020 [16]
Printed by authority of the Commonwealth Government Printer
Mr Rhys Dudek
Bowral Concrete Pumping Pty Ltd [2020] FWC 2309
Permission for the Respondent (Bowral Concrete Pumping Pty Ltd) to be represented by a lawyer at the Hearing was refused [14]–[15].