Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Termination of employment - representation by lawyers and paid agents.

[1] This Decision involves an application for unfair dismissal remedy which has been made under s. 394 of the Fair Work Act 2009 (the Act). The application was made by Nicole Knutson (the applicant). The respondent employer is Chesson Pty Ltd T/A Pay Per Click (the employer).

[2] This Decision is made in respect to the discrete question as to whether the Fair Work Commission (the Commission) should grant permission for the employer to be represented by lawyers or paid agents (the representation question).

[3] The application was filed on 9 December 2017, and at that time, the applicant was represented by Wood Marshall Williams Lawyers (WMW Lawyers). The employer filed a response to the application dated 2 January 2018, which was accompanied by a Notice of representative commencing to act (Form F53), incorrectly dated 2 January 2017, and made by Source Legal (Source Legal).

[4] The file indicates that conciliation of the matter occurred on 9 January 2018. The matter has been scheduled for Hearing/Conference on 22 March 2018, at Sydney.

[5] At a Pre-Hearing Conference held on 30 January 2018, the applicant advised that she was no longer represented by WMW Lawyers, and she formally raised objection to the employer being represented by lawyers or paid agents. The Parties were directed to file and serve their respective submissions on the representation question. On 31 January 2018, the applicant provided documentary confirmation that WMW Lawyers no longer represented the applicant.

[6] Source Legal have provided written submissions dated 6 February 2018, in support of permission being granted for the employer to be represented by lawyers or paid agents. The applicant has provided written submissions dated 13 February 2018, opposing the representation question being granted in favour of the employer. The representation question has been determined upon the documentary material which has been filed by the Parties.

[7] The question of representation in proceedings before the Commission is governed by s. 596 of the Act which is in the following terms:

"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.

(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:

(a) is an employee or officer of the person; or

(b) is an employee or officer of:

(ii) an association of employers that is not registered under the Registered Organisations Act; or

1. The legislative intentions underpinning s. 596 of the Act have been the subject of various Decisions of the Commission and of Fair Work Australia. Further, the approach to consideration of the representation question has been examined by way of Judicial Review in the (incorrectly named) Judgment of Warrell v Walton[1] (Warrell) and it is relevant to note, in particular, paragraph 25 of that Judgment.

2. It is also relevant to note that the operation of s. 596 of the Act has been the subject of more recent examination by a Full Bench Decision in the case of Fitzgerald v Woolworths Limited [2] (Fitzgerald). The Full Bench Decision in Fitzgerald has established, inter alia, particular practical consequences that have application in circumstances where permission for a party to be represented by lawyers or paid agents is refused, or where lawyers or paid agents undertake a representative role without first obtaining the permission of the Commission.

[10] Subsection 596 (2) of the Act includes three factors which separately or in combination, provide the basis upon which the Commission can grant permission for a lawyer or paid agent to represent a Party in proceedings such as the Hearing/Conference of a claim for unfair dismissal. The three factors which can be identified in paragraphs (a), (b) and (c) of subsection 596 (2), can be paraphrased as: (a) complexity/efficiency; (b) inability/effectively; and (c) fairness.

[11] In this case, Source Legal has submitted that there was sound basis for the Commission to grant permission for the employer to be represented by lawyers. In particular, Source Legal submitted that the employer was a small business with less than 10 employees, without human resources personnel, or any person with expertise or experience in employment law. The submissions made by Source Legal also stated that the matter involved technical questions of law which would be dealt with more efficiently with the assistance of lawyers.

[12] Conversely, the applicant has stated strong objection to the employer being granted permission for legal representation. The applicant has asserted that the matter was not complex and that as she had no legal experience, it would be unfair if the employer was granted permission to be represented by lawyers. The applicant indicated that her previous engagement of WMW Lawyers arose because the employer had not responded to earlier communications regarding the circumstances surrounding the termination of her employment.

[13] In this instance, Source Legal has submitted that the matter involved sufficient complexity arising from technical questions of law such that its determination would be assisted by legal representatives. The technical legal questions were said to arise from the jurisdictional challenge as to whether the applicant had been dismissed, or forced to resign, or whether the notice of termination given to the applicant was effective and valid.

[14] The applicant submitted that the matter was simple and not complex. Further, the applicant asserted that if the employer was granted permission to be represented that would make the case more complex and difficult for the applicant to represent herself as she had no previous experience or legal background.

[15] Upon examination of the material which has been filed, and a consideration of any contests that may arise from it, I am unable to recognise a level of complexity beyond that which would ordinarily be found in a routine unfair dismissal matter. The matter presents as a fairly straightforward case, notwithstanding that there is some contest about the validity of a notice of termination and subsequent conduct that may have rendered that notice to be invalid.

[16] Source Legal advanced an argument that the employer would be unable to represent itself effectively without the assistance of lawyers or paid agents. It was submitted that as a small business, with essentially no previous experience in advocacy or employment related matters, the employer was unable to represent itself effectively. Source Legal submitted that the employer was not capable of addressing the particular legal questions that were raised in the matter.

[17] The applicant submitted that the employer would essentially be in the same position as the applicant if it were not granted permission to be represented by lawyers or paid agents. The applicant stressed that she had no experience in any professional capacity dealing with proceedings before the Commission.

[18] Upon examination of the submissions made, I am not convinced that the employer could not effectively represent itself without lawyers. Although the employer is a small business and understandably may desire to be represented by lawyers or paid agents, in circumstances where an applicant is essentially unskilled and inexperienced, there is no basis to conclude that any particular person who would represent the employer would not be capable of making a "striking impression" or be "impressive" or be "powerful in effect".

[19] The issue of fairness between the Parties is a matter of recognised significance. In this instance both Parties have made submissions which have addressed the question of fairness.

[20] Source Legal submitted that it would be unfair if the employer was denied an opportunity to be represented by lawyers. The submissions made by Source Legal noted that the applicant had previously been represented by lawyers, and therefore she had significant opportunity to receive advice and legal guidance about her case. It was said that these circumstances meant that there would be no unfairness between the applicant and the employer if the employer was permitted to have legal representation.

[21] The applicant submitted that it would be unfair for the employer to have representation in a matter where she was representing herself without the knowledge and resources that would be at the disposal of the employer's lawyers.

[22] In this instance, having regard for the respective representational positions of the Parties, there would appear to be little unfairness created if the employer was required to utilise its own staff. Although the employer is a small business without any dedicated personnel who deal with employment related matters, the matter has been acknowledged to be reasonably simple, without any significant factual dispute, and well documented by written communications between the Parties.

1. The Act envisages that Parties appearing before the Commission would not be represented by lawyers or paid agents. It may be said that the "default position" is that lawyers and paid agents are excluded from representation of Parties in proceedings before the Commission. The "default position" which excludes lawyers and paid agents, has been established in the interests of informality as was recognised in the following extract from the Warrell Judgment; "The appearance of lawyers to represent the interests of parties to a hearing runs the very real risk that what was intended by the legislature to be an informal procedure will be burdened by unnecessary formality."[3]

[24] In the present circumstances, applying in particular, the reasoning contained in the Judgment in the Warrell case, I consider that unnecessary formality would be created by the granting of permission for legal representation. There would be no imbalance created by a circumstance where an applicant who was self-represented, was opposed by a member of the staff of the small business that formally employed her. A configuration of this nature would be entirely consistent with the legislative regime, particularly in circumstances where complexity has not been established.

[25] In view of the conclusions that I have reached in respect of each of the relevant aspects of subsection 596 (2) of the Act, the permission sought by the employer to be represented by lawyers or paid agents is refused.

1. [1] Warrell v Walton [2013] FCA 291.
2. [2] Stephen Fitzgerald v Woolworths Limited [2017] FWCFB 2797.
3. [3] Warrell v Walton [2013] FCA 291 @ paragraph 25.

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