Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Active Kids Pre School Centre of Excellence Pty Ltd

Termination of employment - representation by lawyers and paid agents.

[1] This Decision involves an application for unfair dismissal remedy which has been made under section 394 of the Fair Work Act 2009 (the Act). The application was made by Penelope Mary Kathleen Phair (the applicant). The respondent employer has been identified to be Active Kids Pre School Centre of Excellence Pty Ltd ABN: 28 059 087 857 (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 applicant to be represented by lawyers or paid agents (the representation question).

[3] The application was filed on 14 January 2020, and it indicated that the date of the applicant's alleged unfair dismissal was 30 December 2019. Consequently the application was made within the 21 day time limit prescribed by subsection 394 (2) (a) of the Act. On 22 January 2020, the employer filed a response to the application which indicated inter alia, that the employer raised a jurisdictional objection to the application on the basis that the applicant was not dismissed (the no dismissal objection).

[4] The filed documentation indicates that conciliation of the matter occurred on 24 February 2020. However, agreement was not reached to settle the matter, and at a Pre-Hearing Conference held on 5 March 2020, the employer raised objection to the applicant being granted permission to be represented by a lawyer. The substantive matter, including the no dismissal objection, has been scheduled for Hearing/Conference on 29 April 2020.

[5] The solicitors for the applicant, Proctor Phair Lawyers, and the employer, have each provided their respective documentary material regarding the representation question, with the material from the employer, being filed on 11 March 2020. The representation question has been determined upon the documentary material which has been filed by the Parties.

[6] 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.

[9] 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.

[10] In this case, the solicitors for the applicant have submitted that there was sound basis for the Commission to grant permission for the applicant to be represented by lawyers. It was submitted inter alia, that the matter would be dealt with more efficiently if lawyers were permitted to represent the applicant. Further, it was submitted that the applicant would be unable to represent herself effectively in circumstances where the case may involve significant legal argument.

[11] Conversely, the employer has made submissions which stated its objection to the applicant being granted permission for legal representation. The employer submitted that "It would be most effective and efficient by inviting the applicant to attend in person and have a face to face communication to facilitate the accuracy of information being exchanged." Further, the employer rejected that the applicant would be unable to effectively represent herself as she was "... an experienced Early Childhood Teacher, who shall be capable of expressing and representing herself effectively before the Commission." The employer also submitted that the matter did not involve great complexity and that it would be unfair for lawyers or paid agents to represent the applicant as to do so may introduce unnecessary complexity.

[12] In this instance, the solicitors for the applicant have submitted that the Commission would be assisted by the involvement of legal representatives who would enable the matter to be dealt with more efficiently. Conversely, the employer asserted that the issues in dispute were not complex, and that the involvement of lawyers may introduce unnecessary complexity.

1. Upon examination of the material which has been filed, and a consideration of any contests that may arise from it, it is clear that a level of complexity can be identified from the no dismissal objection raised by the employer. The level of complexity that can arise in respect to matters that are broadly described to have involved a constructive dismissal can be clearly identified from the Full Bench Decision in the case of Bupa Aged Care v Tavassoli [3].

[14] The solicitors for the applicant submitted that the applicant would be unable to represent herself effectively without the assistance of lawyers. The employer submitted that the applicant as an experienced Early Childhood Teacher, would be able to represent herself effectively. Therefore, according to the employer, allowing legal representation would only increase complexity.

[15] Although the applicant would logically have a level of professional skill and be generally articulate, it would be understandable that she would have some reluctance and difficulty to be able to effectively represent herself in respect to any application of the concept of constructive dismissal which clearly represents the foundation for her unfair dismissal claim. In the context of a case with the complexity involved with an alleged constructive dismissal, the applicant would be likely to be incapable of making a "striking impression" or be "impressive" or be "powerful in effect".

[16] The issue of fairness between the Parties is a matter of recognised significance. In this instance the solicitors for the applicant have not made submissions which have raised the question of fairness. The submissions made by the employer mentioned unfairness, and although it is not a small business, it presumably does not have staff that are experienced in the presentation of matters before the Commission. Understandably the employer may perceive that it would be at a disadvantage if permission was granted for a lawyer to represent the applicant.

[17] However, in this case, having regard for the respective representational positions of the Parties, I have not been persuaded that there would be unfairness created if the applicant was granted permission to be represented by lawyers, whilst the employer represented itself. The employer is not a small business, and there was no suggestion that it did not have personnel who specifically deal with employment related matters in a professional capacity.

[18] Although the Act envisages that Parties appearing before the Commission would not be represented by lawyers or paid agents, the legal complexity that has been identified in this instance would be assisted by the involvement of lawyers to present relevant evidence and argument in respect of the issue of the alleged constructive dismissal of the applicant. Consequently, the circumstances in this instance have provided support for permission to be granted on the basis of efficiency, effective representation, and fairness between the Parties.

[19] 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 applicant to be represented by lawyers or paid agents is granted. Permission is accordingly granted for either Party to be represented by lawyers or paid agents.

1. [1] Warrell v Walton [2013] FCA 291.
2. [2] Stephen Fitzgerald v Woolworths Limited [2017] FWCFB 2797.
3. [3] Bupa Aged Care Australia Pty Ltd T/A Bupa Aged Care Mosman v Shahin Tavassoli [2017] FWCFB 3941.

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