s.394 - Application for unfair dismissal remedy

Application for an unfair dismissal remedy - request for permission to be represented - permission not granted.

• [1] Ms Qingwei Wang, also known as Alice Wang, has applied for an unfair dismissal remedy ("the unfair dismissal application"). The former employer, Learner Centre Pty Ltd, ("the Learner Centre"), which trades as APEX Training Institute, has applied to the Commission to vary redundancy pay in relation to Ms Wang ("the redundancy pay application"). The proceedings relating to the latter have matter number C2024/6639.
• [2] If a party wants to be represented by a paid agent or lawyer, they need the Commission's permission.[1] The Learner Centre wants permission to be represented by a paid agent in the proceedings in relation to each of the unfair dismissal application and the redundancy pay application. This decision relates to its request to be represented in the proceedings in relation to the unfair dismissal application. Ms Wang opposes the Learner Centre's request.

• [3] The Commission may grant permission only if:[2]

(a) it would enable the matter to be deal 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.

How does the Commission decide whether to grant permission?

• [4] Deciding whether to grant permission is a two-step process:[3]

(a) First, the Commission decides if at least one of the above requirements has been met. If so, that enlivens (activates) the discretion about whether to give permission.

• (b) Second, the Commission decides whether to exercise the discretion and grant permission.[4]

• [5] On 1 November 2024, I issued directions in anticipation of deciding Ms Wang's unfair dismissal application. In doing so I directed the parties to attend a conference on 26 November 2024.
• [6] I also directed that any party wishing to ask for permission to be represented in this matter to file submissions by Friday, 22 November 2024, and indicated that the submissions should address section 596 of the Fair Work Act 2009 ("the Fair Work Act"). If the other party wished to object, they were to not later than one business day after receiving the requesting party's submissions.
• [7] Deputy President Lake had previously scheduled a hearing in relation to the redundancy pay application for 25 November 2024. That matter was mentioned on 21 November 2024 and it was decided that that matter would be adjourned pending the outcome of the unfair dismissal application. Accordingly, the listing for a hearing on 25 November 2024 was vacated.
• [8] On Saturday, 23 November 2024, a prospective representative emailed my chambers attaching a notice that Learner Centre Pty Ltd would seek permission for a paid agent to participate in a conference or hearing (a form F53). The notice referred to the prospective representative and the human resources firm by which he was engaged ("the paid agent firm"). On that date the prospective representative also requested that the conference, which had been listed in person, be held via Teams instead. He did not provide any basis for that request.
• [9] On 25 November 2024, I considered the prospective representative's request, emailed over the weekend, to conduct the conference scheduled for the 26 November 2024 remotely rather than in person. I noted that according to the materials filed to date the parties were both based in Brisbane, but that the form F53 gave the paid agent firm's address as being in Victoria. I decided to allow the prospective representative, but not the parties, to join the conference remotely.
• [10] As the Learner Centre had not complied with the direction to file submissions in support of its request by 22 November 2024, and instead emailed the notice referred to above on Saturday 23 November 2024, the direction for Ms Wang to provide any objection did not fall due in advance of the conference or at all.
• [11] The conference went ahead on 26 November 2024. The prospective representative joined remotely. Officers or employees of the Learner Centre also joined remotely despite the conference being listed in person.
• [12] At the conference, Ms Wang objected to permission being granted to the Learner Centre to be represented by a paid agent. I invited the prospective representative to make submissions as to whether the Learner Centre should be granted permission. He indicated he was not able to do so. I did not grant permission but indicated that if the matter proceeded beyond that day's conference, I would provide a further opportunity for the parties to make submissions as to representation should they wish to do so.
• [13] The conference was later adjourned, to resume on 8 January 2025 in person in Brisbane.
• [14] The redundancy pay application was reallocated to my chambers. It remained adjourned pending the outcome of the unfair dismissal application.
• [15] On 2 December 2024, Ms Wang filed her materials, consistent with my Directions of 1 November 2024.
• [16] On the same date, and as contemplated at the end of the conference of 26 November 2024, I issued further directions listing the matter for conference on 8 January 2025. Those further Directions also allowed a further opportunity for the Learner Centre to file submissions in support of its request for permission to be represented, by 11 December 2024, and allowed Ms Wang until 18 December 2024 to object if she wished to do so.
• [17] On 10 December 2024, a new prospective representative from the same paid agent firm filed a new form F53. The form listed the paid agent firm, not the Learner Centre, as the party giving notice. At the question as to which party was the party giving notice, neither "Applicant" nor "Respondent" was checked. Instead, "Other" was checked. At the question inviting the notifier to indicate which conference or hearing permission was sought for, or to indicate that permission was sought for all future conferences and/or hearings, the answer did not directly respond to that question but instead listed the matter number and provided short submissions.
• [18] The new prospective representative's covering email of 10 December 2024 also indicated a hope that the matter would be able to be resolved before the "hearing" listed in January, provided some information in relation to the redundancy pay application, and stated, among other things,

...it is our hope confirmation of the above-mentioned can lead to the matter being resolved via a short telephone conference if needed, withdrawn and the parties being released from its obligations in January 2025.

• [19] On 11 December 2024, my chambers told parties that unless the Learner Centre indicated otherwise, the Commission intended to take the new form F53, including the response provided at question 4 of the new form F53, as the Learner Centre's submissions in support of their request for permission to be represented. The Learner Centre has not since indicated otherwise.
• [20] On 13 December 2024, the Commission's lodgments email address received a purported notice of discontinuance in relation to the unfair dismissal application. It was received from the new prospective representative for the Learner Centre.
• [21] My chambers wrote to the parties in response indicating, among other things, that if the new prospective representative was attempting to discontinue the redundancy pay matter, he should redo the form and resubmit it.
• [22] On Saturday, 14 December 2024, the Commission's lodgments email address received another notice of discontinuance, also dated 13 December 2024. This notice bore the matter number "U2024/6639" and listed Ms Wang, not the Learner Centre, as the Applicant. The subject of the covering email was "Re: F2024/9844".
• [23] On 16 December 2024, the new prospective representative wrote to the Commission indicating there may have been an issue of matter numbers and he had not intended to discontinue Ms Wang's unfair dismissal application. Ms Wang also responded to say she did not wish to discontinue her application. My chambers has written to the parties stating an intention to take the second of the notices of discontinuance as relating to the redundancy pay application unless the Learner Centre advises otherwise.
• [24] On 17 December 2024, Ms Wang provided submissions opposing the Learner Centre's request for permission to be represented by a paid agent.
• [25] On 18 December 2024, the new prospective representative provided materials that the Respondent in these proceedings had been due to file by 16 December 2024. This due date had been set in my Directions of 1 November 2024. The Respondent had not sought an extension prior to the relevant Direction falling due.
• [26] In his covering email of 18 December 2024, the new prospective representative apologised, indicated the due date had been overlooked, and asked that the materials be allowed to be filed late, with an extension also provided to Ms Wang for her reply materials.

What did the parties say about whether the Commission could or should grant permission?

• [27] The notice emailed on 23 November 2024 was not accompanied by (and did not contain) any submissions in relation to permission to be represented. The covering email relevantly stated:

We have been assisting Learner Centre Pty Ltd in a s.120 matter that has been adjourned pending this matter. We seek the Deputy President's approval to continue to assist in this matter as we believe they are directly related.

• [28] As indicated above the initial prospective representative was not able to make submissions at the conference on 26 November 2024.
• [29] The notice filed on 10 December 2024 stated, among other things:

I am seeking to appear in this matter given the complexity in relation to the reason for termination being a disputed redundancy. > > Often this can cause some difficulties for a business to understand what's involved when it gets to the definitions as outlined by the Fair Work Act. My participation in the hearing would allow me to simplify the matter for the Respondent, noting they do not have internal HR or IR support within their business. I believe this will also assist the Commission and the Applicant as it will alleviate the need for the Respondent to work out the intricacies during the conference. > > Finally, there have been attempts at resolving the issues at hand so by taking a practicable, simple approach I believe this would enable the matter to be dealt with more efficiently on behalf of the Respondent and not have the conference weighed down with a lot of unnecessary explanations on procedure or process.

• [30] Ms Wang provided the following in support of her objection to permission being granted:

My objection is based on the following grounds: > > 1. Procedural Fairness: Allowing the Respondent to engage a paid agent creates an imbalance in representation. I am representing myself without legal or professional support, and the inclusion of a paid agent would put me at a significant disadvantage in presenting my case. > > 2. Nature of the Case: This matter is not overly complex and does not require specialized legal expertise that necessitates the involvement of a paid agent. The Respondent, as a corporate entity, has sufficient in-house resources and experience to manage its representation. > > 3. Efficient Use of Commission Resources: The participation of a paid agent may lead to unnecessarily protracted proceedings, given their vested interest in extensive argumentation. This would be counterproductive to the Commission's aim of efficient resolution. > > 4. Compliance with Commission Directions: The Respondent has already been afforded multiple opportunities to provide submissions and articulate their position. Their request to engage a paid agent appears to be an attempt to unnecessarily complicate the process rather than address the substantive issues at hand. > > I respectfully request the Commission to decline the Respondent's request to be represented by a paid agent in the interests of procedural fairness and equitable resolution of the matter.

• [31] I have considered the above matters. I will deal first with the question of efficiency.

• [32] Having regard to the background set out above, the prospective representatives' actions in this matter have not been conducive to efficiency. Taking into account that background and the parties' submissions, on balance I am not persuaded that granting permission would enable the matter to be dealt with more efficiently, taking into account the complexity of the matter. I will therefore consider the next possible basis on which the discretion could be enlivened.

• [33] The submissions made on behalf of the Learner Centre assert that it lacks in-house human resources or industrial relations support. Ms Wang asserts the Learner Centre has sufficient in-house resources and experience to manage its representation.
• [34] The Learner Centre has filed an Employer Response (form F3) in this matter. The letters on the APEX Training Institute letterhead that are annexed to the Employer Response are signed by a person whose title is "Head of Operations and People." That same person is listed as the contact person on the face of the Employer Response, and also participated in the conference held on 26 November 2024. A person described in Ms Wang's originating application as the business owner also participated in that conference. The Employer Response states the Learner Centre has 32 employees.
• [35] I am not persuaded on the material presently before me that it would be unfair not to allow the Learner Centre to be represented because it is unable to represent itself effectively. I will therefore consider the last possible basis on which the discretion could be enlivened.

• [36] I am not persuaded that it would be unfair not to allow the Learner Centre to be represented taking into account fairness between it and Ms Wang. As Ms Wang says, she is representing herself.
• [37] Accordingly, the discretion is not enlivened.

• [38] As the discretion is not enlivened, it follows I do not grant permission for the Learner Centre to be represented by a paid agent.
• [39] The Learner Centre has liberty to reapply if its situation materially changes.

[1] Fair Work Act 2009 s 596(1).

[2] Fair Work Act 2009 s 596(2).

[3] Warrell v Fair Work Australia [2013] FCA 291.

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