Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Section 596 - objection to appearance by lawyer - s.596(2).

[1] An application pursuant to s.394 of the Fair Work Act 2009 (the Act) has been made by Ms Susan Edwards (the Applicant), alleging that the termination of her employment from Litchfield Shire (the Respondent) was harsh, unjust and or unreasonable.

[2] A Hearing is listed to be heard in Darwin on 28 and 29 August 2019. The Respondent recently provided a Notice of Representative Commencing to Act and permission has now been sought for representation by a lawyer for the purposes of the upcoming arbitration. Directions were set out and submissions have been made by the Respondent in support of its application for permission to be represented. The Applicant objects to permission being granted.

[3] Whilst not all of the submissions and evidence are referred to in this decision, all of such have been considered.

[4] Section 596 of the Act is the statutory provision setting out the circumstances in which a party to any proceeding in the Commission may request to be represented by a lawyer or paid agent. It is expressed as follows:

"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.

(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

[5] 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."

[6] The Respondent has sought permission pursuant to ss.596(2)(a) and (b).

[7] 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.[1] While not explicitly stated, I understand the Respondent's application to be that the matter is sufficiently complex for two reasons. First, the Respondent relies upon a number of allegations to substantiate a valid reason for dismissal, and the Applicant disputes these reasons as a matter of fact and calls into question the Respondent's true motivation in dismissing her. Second, the Applicant has continued to agitate an alleged underpayment, a matter that the Respondent has submitted is not relevant to the matters this Commission must determine. The submissions continue that the matter will be dealt with more efficiently in that representation will enable the factual disputes to be dealt with efficiently, and to focus the dispute on issues relevant to this Commission's determination.

[8] I do not accept that the matter will be dealt with more efficiently taking into account the complexity of the matter. The two issues that the Respondent refers to as making the matter complex are, without minimising the very serious issues involved from the Applicant and Respondent's perspective, regular, in terms of an unfair dismissal application. In almost every matter there is some level of dispute concerning whether there is a valid reason for dismissal and it is not uncommon for unrepresented parties to raise issues that are not, at least directly, within the Commission's jurisdiction. While the resolution of these matters will require careful consideration by the Commission, they are not entirely complex.

[9] Additionally, the grounds for the termination of employment relate to matters that allege breaches of council policies and procedures and are within the ordinary domain and operational knowledge of the company representatives. The alleged misconduct relates to tests of the company practice, procedures and policies. All issues that can be addressed by company personnel. The matter is not significantly complex but relates to the test of the Applicant's conduct, against councils requirements and documents.

[10] As relates to s.596(2)(b) of the Act, the Respondent submits that it would be unfair not to allow representation because the Respondent is unable to represent itself, effectively. The Respondent submits that Ms Nilon, Director of Infrastructure and Operations, will be a witness in the proceedings and consequently is not in a position to conduct proceedings on behalf of the Respondent. The Respondent does not have any in-house human resources personnel, with the closest being an acting Work Health & Safety Advisor, that is a parental leave replacement. This person, Ms Bailey, does not have experience with proceedings before the Commission. In total the Respondent has 59 employees, none of whom have any "significant involvement" in proceedings before the Commission. However it is noted that in providing the appearances to the Commission the Respondent's lawyers noted in the email of 25 June 2019 that Ms Baily in title was noted as a Human Resources and Work Health and Safety advisor.

[11] In Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v UGL Resources Pty Limited (Project Aurora) [2012] FWA 2966, Fair Work Australia (as it then was) said:

"[14] In the context used in the s.659(2)(b) of the Act, the adverb "effectively" is used to condition the verb "to represent". Thus**,** a person must be unable to represent himself, herself or itself effectively in order for the requisite permission to be granted.

[15] It seems sufficiently clear that Parliament did not intend that permission to be represented be granted when a person is unable to be represented "satisfactorily", "sufficiently" or "adequately" etc. These are not the adverbs that Parliament has put to work in s.596(2)(b) of the Act. Rather, the adverb performing the conditioning work upon the verb "to represent" in s.596(2)(b) of the Act is "effectively".

[16] It appears, then, that before permission to be represented can be granted, a person must be unable to represent himself, herself or itself effectively, and following the plain language definitions of the Macquarie Dictionary (Revised Third Edition) and the Australian Concise Oxford Dictionary (Third Edition), this means the person must be unable to represent himself, herself or itself in a manner that creates a "striking impression", or which has an "impressive" effect or which is "powerful in effect".

[17] In this definitional context, it might not be unusual for a person to be unable to represent himself, herself or itself "effectively".

[18] Equally, there may be innumerable circumstances which might render a person unable to represent himself, herself or itself "efficiently" (which the Australian Oxford Concise Dictionary (Third Edition) suggests is one further definition of "effectively"). Location, competing work priorities or other obligations come to mind as reasons why a person might be unable to represent him or herself (or itself) efficiently.

[19] Alternatively, a person may be unable to be represented effectively out of a concern the manner of their representation will not achieve an intended result or outcome, which is a further definitional context for s.596(2)(b) of the Act."

[12] That Ms Nilon is a potential witness in proceedings is not a determinative factor. The Applicant is also, a witness in proceedings and representing herself. It is very common for unrepresented parties to represent themselves whilst also being a witness in proceedings and to do so effectively.

[13] The matters referred to as the basis for the dismissal relate to an examination of the routine operational requirements of the council procedures in relation to dumping waste and the associated necessary practices and the records of transactions.

[14] In addition the matter raises elements as to how these issues were considered in the termination of the employee.

[15] The Applicant considered she would be significantly prejudiced if the Respondents were to be granted legal representation.

[16] The Respondent notes that the Applicant seeks to address matters relating to the accrual of annual leave. It is correct, that the Applicant considers this as part of the factual matrix as she considers her inquiry about her leave was a precursor to the disciplinary issues she was subject to.

[17] It is confirmed that the Commission in these proceedings has no jurisdiction to address the alleged underpayment of annual leave or any related adverse action.

[18] The granting of permission to appear has been considered against reasons for representation as argued by the legal representatives and the issues of effectiveness, efficiency and fairness. In particular the Applicant is a self-represented ex-employee, endeavouring to present her case against her knowledge of the procedures.

[19] Given the basis of the dismissal and the positions of the company employees involved in the matter it is considered particularly on the basis of fairness that legal representation is not warranted in the current circumstances. Based on the material I am not satisfied that the Respondent is not able to effectively represent itself. In addition, the complexity of the matter does not warrant legal representation. For the reasons set out the application for legal representation pursuant to s.596(2) is refused.

[20] I Order accordingly.

[1] Applicant v Respondent [2014] FWC 2860.

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