Ms DeVania Blackburn v Virgin Australia Airlines T/A Virgin Australia [2021] FWC 6498 (6 December 2021)

[2021] FWC 6498

Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Application for an unfair dismissal remedy - objection to legal representation - s.596 representation by lawyers and paid agents - representation granted.

[1] This decision relates to an application, filed by Ms DeVania Blackburn (the Applicant), pursuant to s.394 of the Fair Work Act 2009 (Cth) (the Act). The Respondent sought to be represented pursuant to s.596 of the Act. The Applicant raised an objection to the Respondent having legal representation in this matter. This decision only relates to the matter of permission to appear.

[2] The Applicant is self-represented in these proceedings. Virgin Australia Airlines T/A Virgin Australia (the Respondent) has sought permission to be legally represented in the proceedings.

[3] The matter is listed for a two-day hearing, commencing on 7 December 2021. The Respondent applied for permission to be granted legal representation in correspondence to the Commission. The Respondent also provided submissions in support of their application for legal representation. The Applicant objected to the legal representation in correspondence to the Commission and provided submissions in support of the objection. Parties were subsequently advised that permission was granted, and that reasons would be provided in the decision proper, or earlier if a party sought such. The Applicant requested the reasons to be provided prior to the decision proper. This decision deals with the permission to appear matter only.

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

(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..."

s.596(2)(a) Efficiency

[5] The Respondent submitted that s.596(2)(a) focuses on the efficient conduct of the matter itself,[1] but does not require any specific level of complexity, or satisfaction that the matter is inherently complex. The level of complexity is a matter to be taken into account, when assessing the broad question of efficiency, however it does not depend on whether a party can in fact represent itself.

[6] It was submitted that in ASC Pty Ltd v AWU, Deputy President Gostencnik observed that:[2]

'...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.'

[7] The Respondent recognised that Applicant "appears" to be self-represented. The Respondent submitted that the material filed by the Applicant to date, resembles a submission (or at best a merger of evidence and submissions). The Respondent argued that the matter is unlikely to proceed efficiently if the matter is in the hands of parties who are inexperienced in advocacy, where the matter involves contested facts and the need for focused cross-examination.

[8] As put generally by Deputy President Sams:[3]

'...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.'

[9] The Respondent submitted that this application has features which will likely benefit from the assistance of legal representation, including the fact that the Applicant's case is fundamentally based on a denial of several allegations, as well as the assertion that the Respondent's investigation was undertaken for an ulterior motive. It was submitted that the Respondent's case is built on proof of serious misconduct, and the Respondent should be allowed to make use of the best available resources to make that case. In that sense, it was argued it is more important for the Respondent to have the benefit of representation, as compared with the Applicant being represented from an entirely abstract 'parity' perspective. Even if that were not the case, parity does not preclude the FWC from giving permission, even if one party is not represented.[4]

[10] The Respondent further submitted that the application would benefit from legal representation, as the Applicant seeks to challenge the validity of the Respondent's investigation and findings which led to the dismissal. Witness credit will be critical, and the Respondent should be allowed every opportunity to test that. Further the Respondent argued that the Commission should have the benefit of that being tested, rather than bare allegations and denials.

[11] The Respondent submitted that this is a case where the facts are disputed and the issues for the Commission to decide include both whether the Respondent had a valid reason for the dismissal based on the investigation into the Applicant's conduct, and whether the bar for a fair dismissal has been satisfied. The underlying issue is one where a finding on serious misconduct will likely decide the case. This is not merely a values-based exercise as to what is fair or unfair; there are important findings of evidence that must be made.

s.596(2)(b) Inability ground

[12] The Respondent recognised that the Commission can grant permission for the Respondent to be legally represented if it would be unfair not to allow the Respondent to be legally represented because the Respondent is unable to represent itself effectively.

[13] The Respondent submitted that while it does have Human Resources and Legal staff, none have experience in conducting arbitration hearings in the Commission. It was also submitted that is a matter of record that, in the last 18 months, the Virgin Group of companies was affected significantly by COVID-19, with travel reduction due to health and border restrictions limiting travel. This led to the company being placed in administration and private sale, and de-listing from the ASX. Its resources have been substantially restricted as a result, and there is currently limited capacity to prepare for and represent Virgin at this type of hearing within the Workplace Relations team, which is one of the reasons for why external representation was sought.

[14] In addition, the Respondent submitted that its in-house resources are currently heavily involved in implementing the Respondent's COVID-19 Vaccination Policy which came into effect on 15 November 2021. As the Respondent employs a relatively large workforce across State and Territory borders, the Respondent has faced the challenge of managing the logistics of a workforce that is subject to a wide range of public health orders. The Respondent's in house staff are currently dedicated to managing this unique challenge to its operations.

[15] The Respondent submitted that any of the criteria noted above are preconditions to the discretion being exercised in favour of legal representation. The Commission has a discretion, which is broad, and take all of the circumstances, into account.

[16] The Respondent further submitted that there are no circumstances which suggest a grant of permission would be an improper exercise of the discretion. To the contrary, the Respondent queries whether the issues can fairly be tried without a legitimate opportunity to test the evidence in its own way, with the benefit of legal representation.

[17] The Respondent referred to the following statement of Deputy President Sams:[5]

"...balancing fairness between parties is as much a case of courtroom management, as it is a case of legislative mandate. With the greatly increased exposure of all courts and tribunals to self-represented litigants, with all of the well known difficulties this brings, the appearance of a focused, experienced and sympathetic legal practitioner is, more often than not, a welcome relief."

[18] The Respondent argued that there is no basis to assume, as was cautioned in Warrell,[6] that legal representation would lead to 'unnecessary formality' in the circumstances of this dispute.[7] The Respondent argued that their submissions demonstrate, if anything, that a less discursive exploration in resolving the disputed matters may be achieved with legal representation than might be gleaned from the arguments advanced by the Applicant.

[19] The Applicant, in her submissions objecting to the Respondent's legal representation, referred to s.577 of the Act, which provides:

The FWC must perform its functions and exercise its powers in a manner that:

b) is quick, informal and avoids unnecessary technicalities;

d) promotes harmonious and cooperative workplace relations."

[20] The Applicant also referred to the Commission's Practice Note (Fair hearings commencing 15 July 2016) which states:

"The provision of a fair hearing is at the very heart of the Commission's obligations to the parties who appears before it. A fair hearing involves the opportunity for all parties to put their case and to have that case determined impartially and according to law. Members of the Commission are not bound to act "judicially" in the sense that they are obliged to provide procedural fairness and to determine matters impartially."

[21] The Applicant argued that determining whether parties are to be represented is a key aspect of ensuring that the matter in which proceedings are conducted is fair and just.

[22] The Applicant also referred to The Explanatory Memorandum to the Fair Work Bill 2008 (Cth), which states:

"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....

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

[23] In addition, the Explanatory Memorandum contains the following commentary in its regulatory analysis section:

"r.335. FWA will move away from formal, adversarial processes, with legal representation and intervening parties. There will be a higher bar set for representation. Permission for representation will only enable the matter to be dealt with more efficiently or fairly...it is envisaged that in most cases legal representation will not be necessary."

[24] The Applicant, in her submissions, opposed the granting for permission for representation to the Respondent. The Applicant submitted that the exercise of the discretion to grant representation would not enable the matter to be dealt with more efficiently, nor that the Respondent is unable to represent itself effectively.

[25] The Applicant asserted that the unfair dismissal matter is not complex when based on the true facts and evidence. The Applicant noted that her submissions and witness statement in total is 12 pages.

[26] The Applicant stated that the substantial application is not of a complex nature, and that there is nothing novel about the facts or law in dispute. The Applicant further argued Respondents grounds for efficiency do not satisfy s.596(2)(a).

[27] The Applicant submitted that although there is a specialised Human Resources and a specialised Legal Team within the Respondent, "none" have experience in conducting arbitral hearings in the Commission, that within the last 18 months there has been a limited capacity to prepare for and represent itself.

[28] The Applicant submitted that the Respondent has demonstrated that they do have an understanding of the hearing process before the Commission. The Applicant argued that the Respondent's responses to the case, set out their capability to represent themselves at a hearing.

[29] The Applicant noted that the Respondent is a medium/large size company, employing over 6000 people. The Respondent has been an operating company from within Australia since 31st August 2000, 21 years. During that 21 years, the Respondent has had access to an in-house HR and Legal Team Department, of whom members of each have been employed based on the experience and qualifications they have in their chosen specialty area.

[30] The Applicant further referred that throughout those 21 years, the Respondent has been involved in a number of disputes and hearings involving the Commission.

[31] The Applicant disputed the lack of experience within the legal team of the Respondent, due to the qualifications and experience of Legal Team Members, tenure and qualifications within the Commission hearing process. The Applicant pointed to a range of the Respondent's legal staff and their qualifications, in support of their legal experience.

[32] The Applicant stated that the Respondent's Covid-19 Vaccination Policy was decided on in August 2021, meaning that making the Respondent aware of the policy prior to requests for leave applications. The policy stipulates the mandatory requirement of the Respondent's employees to be vaccinated. All frontline workers were required to be vaccinated by 15th of November 2021, and office based employees by 31st March 2022.

[33] The Applicant submitted that unfairness would result if the Respondent were permitted to be represented when the Applicant is not. The Applicant stated that she does not have any experience with hearings in the Commission.

[34] The Applicant submitted that there is no evidence that she has any relevant skills, experience or qualifications relevant to the proceedings. The Applicant submitted that the matter is unlikely to proceed efficiently if the matter is in the hands of parties who are inexperienced in advocacy where the matter involves contested facts and the need for focused cross examination.

[35] The Applicant contended that she is confident with the position of self-representation and prepared to present, to the best of her ability, to involve in advocacy involving contested facts, and to be able to carry oneself with conviction during focused cross examinations.

[36] The Applicant submitted that in all circumstances, she considered that opposing the request for representation by Respondent is fair and just in accordance with the Act and will allow proceedings to occur in a manner which is quick, informal and avoids unnecessary technicalities.

[37] The application of s.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.[8]

[38] 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. 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 person. This assessment of the prescribed conditions is an objective exercise. The submissions of both parties on legal representation have been taken into account.

[39] 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 underpinning a dismissal for serious misconduct.

[40] With respect to the issue of fairness between the parties, the Commission's role is to provide a fair process and the Commission has control of the process and the conduct of these proceedings. This is a matter where Directions have been reset to enable the filing of material pertaining to the issues central to the dismissal. The Applicant's material has been filed across a series of documents combining submissions and evidence. All of these will be taken into account, however legal representation will assist the efficient and effective conduct of the matter to allow for the consideration of the matters relevant to the dismissal in an orderly manner, noting there is some complexity to the matter (across the series of documents), on the materials as filed. 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.

[41] There is some complexity to the factual matrix to be assessed against the legal tests as to whether the alleged serious misconduct can be substantiated. Therefore, to assist in the efficient, fair and effective conduct of the matter, the Respondent, pursuant to s.596(2)(a) of the Act, is granted permission to be represented by a lawyer at the hearing for this matter. The Commission is responsible for providing a fair process to both parties, and the procedure will be controlled by the Commission, allowing for the equitable presentation of both cases.

[42] As set out, legal representation is granted pursuant to s.596(2)(a).

[1] ERGT Australia v Govender [2021] FWCFB 268.

[2] [2014] FWC 544 at [16].

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

[4] Ellem v Gladstone Area Water Board [2016] FWC 1893.

[5] Applicant v Respondent [2014] FWC 2860 at [21].

[6] Warrell v Walton [2013] FCA 291.

[7] As was also the case in Artery v Gavin Case Marine Services [2021] FWC 4130, noted at [23].

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

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