Fair Work Act 2009

s.394 - Unfair dismissal

Qantas Ground Services PTY LTD T/A Qantas Ground Services PTY LTD, Qantas Group

Representation by lawyers and paid agents - permission for Respondents to be represented by a lawyer refused.

[1] Mr Ross Kennedy (the Applicant) lodged an application under s.394 of the Fair Work Act 2009 (the Act) which was received by the Fair Work Commission (the Commission) on 3 November 2017 alleging that the termination of his employment by Qantas Ground Services Pty Ltd T/A Qantas Ground Services Pty Ltd, Qantas Group (QGS - the Respondent) on 2 November 2017 was unfair.

[2] On 13 November 2017, QGS gave notice of representative commencing to act (Form F53).

[3] A conciliation conference before one of the Commission's conciliators on 6 December 2017 failed to resolve the matter, with Mr Kennedy's application subsequently allocated to the Commission as presently constituted. The matter was listed for a mention and directions hearing on 22 December 2017.

[4] In other developments, on 19 December 2017 Mr Kennedy lodged with the Commission an application seeking several orders for the production of documents.

[5] At the mention and directions hearing Mr Kennedy objected to QGS being granted permission to be represented by a lawyer. The mention and directions hearing concluded on the basis that the Commission would determine the permission to represent issue prior to considering Mr Kennedy's application for orders to produce and programming his application for hearing. Directions to that effect were issued on 22 December 2017, with the final submissions on the permission to represent issue provided to the Commission on 29 January 2018. Both parties subsequently confirmed that they were content for the issue to be determined on the papers, though QGS in its submissions requested the opportunity to be heard in the event that the Commission was not prepared to grant it permission to be represented. In view of that request and the Commission's preliminary inclination not to grant permission based on the parties' written submissions, a telephone hearing was held on 15 March 2017.

[6] Permission was granted for QGS to be legally represented solely for the purpose of that telephone hearing. Mr Jonathan Forbes of Counsel appeared for QGS, while Mr Kennedy appeared on his own behalf. At the telephone hearing, Mr Kennedy contended that QGS in its oral submissions had raised new matters and arguments which went beyond those canvassed in its written submissions and Mr O'Neil's statement. While QGS disputed this, other than in respect of one decision[1] it referred the Commission to in support of its submissions, the Commission decided to provide Mr Kennedy the opportunity to review the transcript of the hearing and provide further written submissions in respect of those aspects of QGS' oral submissions which went beyond its written submissions. Directions to that effect were issued on 20 March 2018, with any further submissions to be filed by close of business on 27 March 2018.

[7] For the reasons set out below, I consider that the requirements of s.596(2) of the Act have not been made out by QGS. Permission is therefore refused for QGS to be represented by a lawyer in these proceedings.

[8] Mr Kennedy objected to QGS being granted permission to be represented by a lawyer for a number of reasons including that:

• QGS was a large company with adequate in-house legal and human resources expertise to represent itself in this case;

• it would be unfair to him and he would be significantly disadvantaged were permission to be granted;

• granting permission would be contrary to the spirit of the Act;

• QGS had failed to adequately raise complexities warranting the granting of permission, adding that legal representation would likely protract and sideline the Commission proceedings in respect of his application;

• QGS had not raised any jurisdictional objections which would add any element of complexity to the matter;

• having regard to the decision in Jetstar Airways Pty Limited v Ms Monique Neeteson-Lemkes[2] (Jetstar) it should be relatively straightforward for the Commission to determine inter alia whether the medical practitioner who undertook his fitness for duty assessment was suitably competent and credible, whether the medical practitioner was independent and impartial and whether the conclusions drawn by the medical practitioner were reliable; and

• drawing on the decision in King v Patrick Projects Pty Ltd[3](King), QGS' claim that the matter was not routine as a result of the volume of material to be filed by the parties in this case was not of itself sufficient to warrant the grant of permission.

[9] At the telephone hearing on 15 March 2018 Mr Kennedy questioned the basis on which Mr Forbes appeared at the hearing. With particular regard to the issue of permission to represent, Mr Kennedy highlighted that aspect of Mr O'Neil's statement where he deposed that QGS had access to nine in-house lawyers and pointed out that QGS' former external legal representative, who had represented QGS in Commission proceedings regarding his application for an order to stop bullying, had in January 2018 taken up a role with Qantas.

[10] In his further written submissions Mr Kennedy reiterated a number of issues he raised at the hearing of 15 March 2018 and sought to raise a new objection to permission being granted on the basis of QGS's former external legal representative taking up an employee relations role with Qantas. Mr Kennedy also contended that QGS' submissions at the hearing involved unreasonable elaborations of existing arguments and matters that had largely been undeveloped in its written submissions and Mr O'Neil's statement and introduced inappropriate and dangerous lines of argument. Mr Kennedy also opposed the alternative proposition put by QGS at the hearing (see paragraph [13] below).

[11] QGS submitted that for the reasons set out below the requirements of s.596(2) of the Act were satisfied and that the Commission should therefore grant it permission to be represented in these proceedings. The reasons cited by QGS included that:

• the matter would involve a degree of legal and procedural complexity beyond that associated with a typical unfair dismissal application, adding that the assistance of an experienced and legally trained advocate would support the efficient resolution of the matter and help confine the hearing to those matters relevant to the matter before the Commission;

• it had been dependent upon external legal support in managing various allegations and applications brought by Mr Kennedy since at least early 2016;

• the granting of permission would assist with the efficient and comprehensive determination of Mr Kennedy's application;

• the resources needed to properly conduct this particular matter were beyond those available to it as the resources required to conduct the matter would exceed those required to conduct a typical unfair dismissal case;

• it would be unfair to refuse QGS permission to be represented as without representation it would be unable to represent itself in a manner that created a "striking impression" or which was "powerful in effect"; and

• Mr Kennedy had a degree of experience as an advocate which exceeded that of a typical self-represented applicant.

[12] QGS' submissions were supported by a statement by Mr Michael O'Neil, Qantas' Head of Industrial Relations, Associated Airlines and Services. In short, Mr O'Neil deposed that it was his belief that neither he nor any other Qantas Industrial Relations Manager was in a position to effectively conduct these proceedings without the support and advocacy of external legal representatives. More specifically, Mr O'Neil deposed that:

• he was currently managing and/or supervising the conduct of a range of matters, including several disputes brought under s.789 of the Act, two other unfair dismissal applications and an appeal before a Full Bench of the Commission;

• there were currently nine Industrial Relations Managers employed in Qantas Industrial Relations Team, with those Managers responsible for managing the industrial relationships between 16 different Qantas Group entities, upwards of 15 employee organisations and approximately 27,000 employees covered by 42 separate enterprise agreements;

• the Qantas Industrial Relations Team relied heavily on the support and assistance of external legal representation in the discharge of its responsibilities;

• the Qantas Industrial Relations Team had since at least early 2016 been heavily dependent on external legal support in managing a number matters relating to Mr Kennedy;

• he believed the degree of procedural and legal complexity associated with these proceedings would be of a quantity and nature that the Qantas Industrial Relations Team did not have the capacity to properly process and manage without the assistance of external support;

• even prior to the filing of materials, Mr Kennedy's application had taken on a degree of procedural and legal complexity beyond that typically involved in unfair dismissal applications managed by the Qantas Industrial Relations Team, citing in particular Mr Kennedy's application for several orders to produce documents; and

• the volume of materials likely to be introduced into these proceedings was of a quantity that the Qantas Industrial Relations Team did not have the capacity to properly manage in the light of its existing responsibilities.

[13] At the telephone hearing QGS submitted inter alia that:

• while in its written submissions it relied on each of the grounds in s.596(2) of the Act, the emphasis of its application really rested with s.596(2)(a) of the Act;

• this was a really compelling case for permission being granted;

• an objective assessment of the material before the Commission enabled the Commission to conclude that this case was likely to be procedurally, factually and legally complex and multi-dimensional and that having regard to those matters it would be more efficient if permission to be represented were granted;

• with regard to s.596(2)(a) of the Act, the question was not whether QGS could represent itself but rather whether the matter could be dealt with more efficiently with representation as opposed to without representation;

• the matter would be dealt with more efficiently were permission granted because of what an experienced legal practitioner who was familiar with the jurisdiction could bring to the situation, adding that where experienced legal representation was involved such involvement was more often of assistance than hindrance and referring to Deputy President Sam's comments to that effect in Applicant v Respondent[4];

• the fact that QGS employs lawyers should not lead to the conclusion that they are the most appropriate and best qualified lawyers for a matter of this kind or that they are a free and available resource;

• Mr Kennedy had been involved in a fairly large body of litigation, with his involvement in that litigation attracting significant adverse and critical comment from judges and members of the Commission[5];

• there was nothing to lead the Commission to the view that by allowing representation that the matter would become more complicated;

• no unfairness would be visited upon Mr Kennedy were permission granted; and

• in the alternative, the Commission could grant permission for QGS to be represented in respect of Mr Kennedy's application for orders to produce and reserve its decision in relation to representation generally.

[14] Section 596 of the Act deals with the issue of representation by lawyers and paid agents. The relevant provisions are set out below:

(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) 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

[15] Justice Flick discussed the application of s.596 of the Act in Warrell v Walton[6] (Warrell) as follows:

"[24] A decision to grant or refuse "permission" for a party to be represented by "a lawyer" pursuant to s 596 cannot be properly characterised as a mere procedural decision. It is a decision which may fundamentally change the dynamics and manner in which a hearing is conducted. It is apparent from the very terms of s 596 that a party "in a matter before FWA" must normally appear on his 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 where only one or other of the requirements imposed by s 596(2) have been taken into account and considered. The constraints imposed by s 596(2) upon the discretionary power to grant permission reinforce the legislative intent that the granting of permission is far from a mere "formal" act to be acceded to upon the mere making of a request. Even if a request for representation is made, permission may be granted "only if" one or other of the requirements in s 596(2) is satisfied. Even if one or other of those requirements is satisfied, the satisfaction of any requirement is but the condition precedent to the subsequence exercise of the discretion conferred by s 596(2): i.e., "FWA may grant permission...". The satisfaction of any of the requirements set forth in s 596(2)(a) to (c) thus need not of itself dictate that the discretion is automatically to be exercised in favour of granting "permission".

[25] 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. The legislative desire for informality and a predisposition to parties not being represented by lawyers emerges, if not from the terms of s 596, from the terms of the Explanatory Memorandum to the Fair Work Bill 2008 ..."

s.596(2)(a) it would enable the matter to be dealt with more efficiently, taking into account the complexity of the matter

[16] Based on the material presently before the Commission and the two hearings held to date in respect of Mr Kennedy's application, it is clear that there are a number of factual matters in dispute in this case and that those matters are likely to be strongly contested. For instance, as foreshadowed in Mr Kennedy's submissions regarding permission to represent, I anticipate considerable debate regarding the medical evidence which QGS contends in its Form F3 - Employer Response to Unfair Dismissal Application supports that there was a valid reason for Mr Kennedy's dismissal. However, the prospect of such disputed matters being hotly contested does not of itself make the matter more complex. The absence of any particular legal complexities or jurisdictional objections associated with Mr Kennedy's application is also a relevant consideration in the context of considering whether or not permission to be represented should be granted.

[17] While I acknowledge that there exists the potential for significant volume of materials to be put before the Commission in this case, as noted by the Full Bench in King this is not of itself sufficient to warrant the grant of permission to be represented[7].

[18] Finally, I note that Qantas' Industrial Relations Team has among its ranks a number of lawyers. It is unclear to me why, were any of those lawyers to appear for QGS in this matter, they would be any less able than external legal representation to assist the Commission in ensuring that the matter was dealt with as efficiently as possible.

[19] For all the above reasons, I am not satisfied that granting QGS permission to be represented would enable the matter to be dealt with more efficiently.

s.596(2)(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

s.596(2)(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

[20] QGS posited that:

• the Qantas Industrial Relations Team was heavily dependent on the support of external legal representation;

• the resources needed to properly conduct this matter were beyond those available to it if permission was not granted;

• in the absence of permission being granted it would be unable to represent itself in a manner that created a "striking impression" or which was "powerful in effect";

• no unfairness would be visited upon Mr Kennedy were permission to be represented granted; and

• it would be unfair to not allow it to be represented largely on the basis that Mr Kennedy had a degree of experience as an advocate that exceeded that of a typical self-represented party.

[21] Having regard to the above, I am not satisfied that the grounds in s.596(2)(b) and (c) have been made out. While I accept that the Qantas Industrial Relations Team frequently utilises external legal assistance, it failed in my view to make out its contention that in the absence of representation it would be unable to represent itself in a manner that creates a "striking impression" or is "powerful in effect". Similarly, QGS did not, as required by s.596(2)(c) of the Act, establish any unfairness to it were permission to be represented not granted taking into account fairness between it and Mr Kennedy in circumstances where Mr Kennedy is a self-represented party, albeit with some experience in representing himself, who is not legally qualified.

[22] Having regard to the above analysis and the decision in Warrell, I am not satisfied that the grounds in s.596(2) have been made out by QGS. Accordingly, there is no basis for the Commission to grant QGS permission to be represented in these proceedings.

[23] Finally, I am not attracted to the alternative approach proposed by QGS at the hearing of 15 March 2018, i.e. to allow QGS to be represented for the purposes of Mr Kennedy's application for orders to produce (see paragraph [13] above). While it is true that the application for orders to produce cover a large number of documents, I note that this is not unusual in unfair dismissal matters and particularly where medical reasons are a factor in the matter. Further, I do not consider QGS' capacity to object to aspects of the orders sought would in any way be prejudiced in the absence of legal representation.

[24] For all the above reasons, I consider that the requirements of s.596(2) of the Act have not been made out by QGS. Permission is therefore refused for QGS to be represented by a lawyer.

[25] As mentioned at the hearing on 15 March 2018, the matter will now be listed for conference to deal with Mr Kennedy's application for order to produce and for mention and directions to set a timetable to deal with his unfair dismissal application.

[1] New South Wales Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663

[2] [2013] FWCFB 9075

[3] [2015] FWCFB 2679

[4] [2014] FWC 2860 at [17]- [22]

[5] Mr Ross Kennedy v Commonwealth of Australia as represented by the Department of Industry, Innovation, Climate Change, Science, Research and Tertiary Education [2014] FWCFB 3530 at [21], [27], [43]-[47]; Kennedy v Secretary, Department of Industry [2015] FCA 714 at [19]- [35]; Kennedy v Secretary, Department of Industry (No 2) [2015] FCA 884 at [10]; Kennedy v Secretary, Department of Industry [2016] FCA 485 at [8]- [9], [13], [16], [24], [60]; Kennedy v Secretary, Department of Industry (No 2) [2016] FCA 746 at [4], [10], [39], [43], [49], [51]; Kennedy v Secretary, Department of Industry [2016] FCA 1251 at [1], [7]-[23], [69]-[78], [87], [103], [107], [121]; Kennedy v Secretary, Department of Industry (No 3) [2016] FCAFC 149 at [15], [75]-[77].

[6] [2013] FCA 291

[7] [2015] FWCFB 2679 at [17]

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