The attached document replaces the document previously issued with the above code on 19 June 2019.

[2019] FWC 4071

Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Application for an unfair dismissal remedy - extension time application to be heard - whether respondent should be given permission to be represented under s.596 of the Act - complexity of matter considered - many documents and other materials filed relating to a series of issues - intended use of materials and explanation for the delay not clear in the absence of a statement of the evidence - history of engagement with Commission prior to lodgement of application - self-representing applicant - relevant complexity found - matter more effectively dealt with if representation permitted - fairness to applicant considered and taken into account - discretion to be exercised in all of the circumstances - permission granted.

[1] Mr Panos Panayiotou has applied to the Fair Work Commission (the Commission) under s.394 of the Fair Work Act 2009 (the FW Act) for an unfair dismissal remedy in relation to his alleged dismissal from the University of Adelaide (Adelaide University). He claims to have been unfairly dismissed on 10 October 2018.

[2] The unfair dismissal application was made on 26 March 2019 and Mr Panayiotou seeks an extension of time to bring the application outside of the standard time limit under s.394(2)(a) of the FW Act (the extension of time application).

[3] In documents attached to his application, Mr Panayiotou states he was "hired to work on a medical research project by the University of Adelaide" and he was in effect "dismissed" after having raised concerns about research activities. Additionally, he claims that he was provided information that "demonstrated employee status" with Adelaide University.

[4] Adelaide University opposes the extension of time application and the unfair dismissal application and has raised a number of jurisdictional objections. It asserts that Mr Panayiotou was not a person protected from unfair dismissal under the FW Act because he was not an employee and was not dismissed (the other jurisdictional issues). Amongst other matters, Adelaide University claims that Mr Panayiotou was a Masters candidate that had his status as a "student" cancelled.

[5] After hearing from the parties at a Directions Conference, on 17 May 2019 I directed that the extension of time issue would be dealt with at a hearing listed for 25 June 2019. This hearing will not involve the determination of the other jurisdictional objections raised, and subject to an extension being granted, these matters, and potentially the substantive unfair dismissal application, would be subsequently dealt with. I directed Mr Panayiotou and Adelaide University to file and serve materials to be relied upon in the extension of time application in advance of the hearing.

[6] The directions also required any party seeking to be represented by a lawyer or paid agent at the hearing of this matter to request permission in writing. Adelaide University seeks permission to be represented by a legal practitioner (Mr Short from Minter Ellison) under s.596 of the FW Act and it has now advanced submissions in support of that request. I apprehend that Adelaide University's request is opposed by Mr Panayiotou, who is intending to represent himself in the hearing of the extension of time application. He has raised some matters potentially relevant to the request for permission and I have also taken these into account.

[7] This decision deals with s.596 request by Adelaide University to be represented in this matter.

2. The legal framework and principles involved

[8] Section 596 of the FW Act provides as follows:

(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:
  • (i) an organisation; or
  • (ii) an association of employers that is not registered under the Registered Organisations Act; or
  • (iii) a peak council; or
  • (iv) a bargaining representative;

(c) is a bargaining representative."

[9] The circumstances contemplated by ss.596(3) and (4) do not apply. Accordingly, Adelaide University requires permission under s.596(2) if it is to be represented by a lawyer in the hearing of this matter.[1]

[10] The proper approach to s.596 of the FW Act was recently summarised by the Full Bench in Grabowski v United Protestant Association of NSW Limited[2] in the following terms:

"[35] Subsection 596(1) provides that a person 'may' be represented in a matter before the Commission by a lawyer or paid agent 'only' with the permission of the Commission. Subsection 596(2) provides that the Commission may grant permission 'only if' it is satisfied as to the existence of one of the circumstances set out in s.596(2)(a) to (c). The use of the word 'may' makes it clear that a decision about whether to grant permission to be represented is discretionary. But that discretion is only enlivened if the Commission is satisfied as to the existence of one or more of the circumstances set out in s.596(2)(a) to (c).

[36] Even if one of the requirements in s.596(2)(a) to (c) is satisfied that is simply the condition precedent to the exercise of the discretion conferred by s.596(2). The satisfaction of any of the requirements in s.596(2)(a) to (c) does not of itself dictate that the discretion is automatically to be exercised in favour of granting permission.

[37] While a decision to grant or refuse permission for a party to be represented by a lawyer or paid agent is an interlocutory decision, it is not properly characterised as a mere procedural decision. As Flick J observed in Warrell v Watson:

'It is a decision which may fundamentally change the dynamics and manner in which a hearing is conducted.'

[38] For completeness we would note that the power to grant or refuse permission for legal representation in s.596(2) does not carry with it the power to select who that legal representative would be, either by reference to the individual identity of the lawyer or whether the lawyer is a barrister or solicitor, nor does it empower the Commission to choose which member of a party's legal team might represent the party in proceedings." (references and footnotes omitted)

[11] In Warrell v Watson,[3] Flick J also reinforced that it is apparent from the terms of s.596 of the FW Act that a party in a matter before the Commission must normally appear on their own behalf. That normal position may only be departed from where an application for permission has been made and resolved in accordance with law; namely only where one or other of the requirements imposed by s 596(2) have been taken into account and satisfied.

[12] As a result, in applying the approach set out above the assessment of whether permission should be granted under s.596 potentially involves a two-step process. The first is consideration as to whether one or more of the criteria in s.596(2) is satisfied. The consideration required by this first step "involves the making of an evaluative judgment akin to the exercise of discretion".[4] Only where the first step is satisfied, the second step arises, and involves a consideration as to whether in all of the circumstances the discretion created should be exercised in favour of the party seeking permission.[5]

[13] Adelaide University contends that a grant of permission would be appropriate as it would enable the matter to be dealt with more efficiently. It does so on the basis that:

• Mr Panayiotou does not have a full appreciation of what is relevant evidence for the Commission to be able to determine the extension of time application;

• The grant of permission would assist the parties and the Commission to focus upon the relevant issues, including those which Mr Panayiotou will need to bring to the Commission's attention; and

• This would enable the matter to be dealt with more efficiently.

[14] Adelaide University pointed to the large amount of material provided by Mr Panayiotou in relation to the matter, including what it contended was irrelevant material. Further, it also relied upon the absence of any witness statement provided by Mr Panayiotou as an example of this lack of focus.

[15] Finally, Adelaide University contends that in light of the extensive communications between Mr Panayiotou and its staff, which had led to the University blocking emails to individuals and the direction of such to a central source, it wished to preserve the current distance between the applicant and those staff.

[16] In the alternative, Adelaide University posited that should the Commission have any reservations about exercising the discretion sought, any grant of permission could subsequently be withdrawn if the representation proved to be detrimental.

[17] The Directions issued by the Commission gave Mr Panayiotou an opportunity to provide submissions in response to the request for permission; to be provided by close of business on 14 June 2019.[6] Upon receiving Adelaide University's submissions seeking permission, an immediate response[7] was provided by Mr Panayiotou taking issue with the assertion by Adelaide University that some of his material in the extension of time application was not relevant. He has also raised various concerns with Solicitors for Adelaide University over a range of issues including emails to the Solicitors being blocked at some stages. Mr Panayiotou did not otherwise directly engage with the basis upon which permission was being sought and did not provide submissions addressing s.596 of the FW Act by the due date (or as at the time of this Decision). However, I have taken Mr Panayiotou's position to be that he opposes the request for permission.

[18] In any event, the considerations of s.596 of the FW Act do not revolve around the consent, or otherwise, of the parties and it is necessary in this case that Adelaide University persuade the Commission to grant its request under the terms of the FW Act.

[19] On face value, a conventional extension of time application under s.394(2), without some further factors or complicating elements, would generally lack the complexity that would provide the foundation for a grant of permission, at least on that basis. Further, as indicated by the Full Bench in King v Patrick Projects Pty Ltd,[8] the fact that the proceedings might be more efficient with representation is not directly relevant, unless such arises from the complexity of the matter itself.

[20] In this case, Mr Panayiotou has provided very extensive materials in support of his extension of time application. In addition to a submission dealing with the considerations established by s.394(2)(b) of the FW Act, a total of 113 individual items comprising documents and audio recordings were initially received from Mr Panayiotou in support of this extension application. These documents were primarily records of email exchanges between Mr Panayiotou and various officers of Adelaide University, as well as Mr Panayiotou's communications with a wide-ranging array of non-government, State and Commonwealth bodies, including: organisations, unions, independent authorities, Commonwealth law enforcement agencies, tribunals, departments, the South Australian Premier and Deputy Premier, State and Federal ministers, Attorneys-general and the South Australian Governor.

[21] The scope of issues covered by Mr Panayiotou's numerous documents is almost as broad as the number of bodies contacted. Without being exhaustive, the documents include and/or concern:

• Correspondence to and from Adelaide University regarding access to emails, IT systems and physical sites and Mr Panayiotou's scholarship, research, review of work completed and internal appeal processes;

• Correspondence to and from Adelaide University regarding counselling referrals, internal whistle-blower processes and information on the date Mr Panayiotou's candidature was terminated;

• Correspondence to and from other research bodies exploring further research proposals;

• Correspondence from the South Australian Office of the Training Advocate regarding initiation, process, and outcome of an external appeal relating to Adelaide University's decision to cancel Mr Panayiotou's enrolment;

• Correspondence to and from Adelaide University regarding the circumstances of a potential referral of Mr Panayiotou's visa status to the Commonwealth Department of Home Affairs;

• Correspondence to and from the offices of the South Australian Premier, the South Australian Minister for Education, and the Chief Executive of the South Australian Department of Education regarding the independent status of Adelaide University;

• Correspondence from the Commonwealth Department of Education and Training;

• Correspondence to and from the Commonwealth Tertiary Education Quality and Standards Agency regarding 'corruption in South Australian universities';

• Correspondence from the Commonwealth Ombudsman, the South Australian Ombudsman and the Fair Work Ombudsman;

• Correspondence to and from the office of the South Australian Independent Commissioner Against Corruption (ICAC SA) and The Reviewer at ICAC SA regarding Adelaide University's termination of Mr Panayiotou's candidature;

• Correspondence from the South Australian and Commonwealth Attorneys-general regarding access to legal advice;

• Correspondence to and from the South Australian Minister for Health's office regarding whistle-blowing;

• Correspondence from the South Australian Governor's office declining involvement;

• Correspondence to and from the Federal Courts Self-Representation Service SA/NT concerning an appointment(s) with the service;

• Correspondence to and from the Law Society of South Australia concerning a request for legal advice;

• Correspondence to and from the University of South Australia regarding guidance sought about Adelaide University's policies;

• Correspondence from the National Tertiary Education Union expressing their view about whether Mr Panayiotou was an employee and eligible to be a union member;

• Correspondence from the Commonwealth Department of Home Affairs regarding Mr Panayiotou's visa status;

• Correspondence from the Commonwealth Department of Jobs and Small Business regarding allegations of workplace bullying made by Mr Panayiotou;

• Documents regarding payments received by Mr Panayiotou from Adelaide University;

• Extracts of Commission and Australian Taxation Office materials concerning the indicia of employment relationships;

• Correspondence to and from the Australian Research Council and the Office of the Chief Scientist regarding a Public Interest Disclosure Scheme approach and research integrity reporting;

• Correspondence to and from the Inspector-General of Intelligence and Security concerning a whistle-blowing disclosure; and

• Various audio recordings of conversations Mr Panayiotou has participated in.

[22] In response, Adelaide University has filed submissions and three witness statements largely directed at documents going to the history of Mr Panayiotou's engagement with the university and the use of his (university) email account pertaining to this matter.

[23] Mr Panayiotou has subsequently provided some additional materials after the date for filing his materials and none of the material provided is in the form of a witness statement or any direct statement of his evidence (beyond the written documents). This is not of itself an issue. However, this will mean that the status of some of these documents and any explanation for the delay in lodgement (and some of the other factors raised by s.394(2)(b)), beyond the documents themselves, will for the most part need to be provided for the first time during the hearing itself.

[24] Further, the Commission has provided to the parties a package of some 223 pages, comprising 43 documents and their attachments, representing communications between its Registries (and other staff) and Mr Panayiotou in the period between 29 September 2018 (when he made initial contact with the Commission) and the time when the unfair dismissal application was lodged. The relevance and import of this material will also be a matter for the Commission to consider in relation to one or more of the considerations arising from s.394(2)(b) of the FW Act.

[25] I also observe that the extent of issues that had been flagged by Mr Panayiotou in the lead up to the Directions conference, the nature and extent of documentation foreshadowed at that point, and the issues that are likely to arise from the history of communications between the Commission and Mr Panayiotou before the unfair dismissal application was filed, led me to conclude that a hearing of the extension of time application was required, during which formal evidence could be taken. Further, I considered that the extension of time application was a significant matter in its own right and should be dealt with in advance of the other issues arising in the unfair dismissal application.

[26] All of these factors are now evident in the extent and nature of the material provided and the issues raised; and when considered in the overall context of this matter, mean that there is relevant complexity associated with this particular extension of time application. I also consider that having regard to the nature of that complexity, a grant of permission to the University would enable the matter to be dealt with more efficiently. This satisfies the precondition set out in s.596(2)(a) of the FW Act.

[27] As a result, a discretion to consider the grant of permission arises. This requires consideration of all relevant circumstances including those of the parties and the matter being heard.

[28] In this case, the fact that the matter would be dealt with more efficiently is itself a factor relevant to the discretion. This is a particularly apposite consideration given the voluminous and eclectic array of materials provided for the extension of time application. As outlined earlier, it is presently unclear how some of this material and some elements of Mr Panayiotou's case will be relied upon in support of the present application. This will not be known until the hearing itself is conducted. In that light, the efficiency also includes the fact that it is far more likely that with representation the extension of time application will be heard in the single period set aside, despite these factors and the likelihood that further issues may be raised during that hearing. That is, I would expect that in most circumstances, the University, if represented, would be able to deal with any such issues in the course of the hearing itself without requiring an additional hearing date.

[29] In a matter such as this, and given the objects of the FW Act,[9] it is important that the proper issues be identified and the matter dealt with fairly and efficiently, in the interests of both parties.

[30] The strongest factor militating against permission being granted is that Mr Panayiotou is not being represented. Mr Panayiotou is an intelligent, educated and resourceful person with evident research skills. He is however not familiar with the practice or procedures of the Commission and will be advancing his own case, including the evidence. Mr Panayiotou has also expressed concerns about being under stress. These elements are important considerations that I have taken into account. They are not, in themselves decisive, and must all be weighed along with all of the circumstances including the Commission's responsibility and capacity to facilitate a fair hearing of the matter irrespective of whether one of the parties is represented.[10] I also observe that it is the responsibility of the representatives to conduct their respective cases in a manner consistent with the statutory charter of the Commission and to assist it to determine the application according to the FW Act.

[31] In terms of the issues raised about the extent and impact of communications between Mr Panayiotou and University staff, it is clear that the applicant is a prolific and robust communicator of his various grievances to many and different agencies, and the staff of those agencies. There is however little direct evidence before the Commission about the implications of any such communication with university staff and as a result I do not consider that it is appropriate to place weight upon that aspect for present purposes.

[32] In relation to Adelaide University's other propositions, it is not necessary for me to deal with those matters given my conclusions above.

[33] I also note that to the extent that there may have been some issues relating to the blocking of Mr Panayiotou's emails to some of Minter Ellison's email addresses, it is now apparent the email communications between the applicant and that firm are open via Mr Short. Even assuming that this was a relevant consideration in this present matter, such is now not a factor.

[34] In all of the circumstances of this matter, I am satisfied that the precondition set out in s.596(2)(a) of the FW Act has been met and that is appropriate to exercise my discretion to grant permission for Adelaide University to be represented by a lawyer.

31 May 2019, from Mr Short of Minter Ellison, on behalf of Adelaide University.

31 May 2019 (directly dealing with this issue), from Mr Panayiotou.

[1] The Fair Work Commission Rules 2013 at rule 12, in effect, provide reviewable permission by default for a lawyer to file documents, correspond with the Commission, and provide written submissions in relation to a matter before the Commission. That default permission does not extend to a hearing of this nature.

[2] [2018] FWCFB 4362.

[3] [2013] FCA 291.

[4] See also Asciano Services Pty Ltd v Hadfield [2015] FWCFB 2618 at [19].

[5] See also Calleri v Swinburne University of Technology [2017] FWCFB 4187 at [36].

[6] Mr Panayiotou was also reminded of his capacity to make submissions on this issue by further email on 31 May 2019.

[7] Email from Mr Panayiotou, received 31 May 2019.

[8] [2015] FWCFB 2697.

[10] See also Meenakshi Callychurn v Australia and New Zealand Banking Group t/a ANZ [2015] FWCFB 5254 at [17].

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