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[2020] FWC 5576
General information, not legal advice.
Fair Work Commission
2020-10-20
Original judgment source is linked above.
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 made pursuant to section 394 of the Fair Work Act 2009 (the Act). The application was made by Tas Manoleskos (the applicant). The respondent employer is Valspar Paint (Australia) Pty Ltd (ABN 40 000 035 914) (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 11 August 2020, and the application document indicated that the applicant was represented by JFMLAW. On 28 August 2020, Mapien Workplace Strategists (Mapien) paid agents, filed a Form F3 - Employer response to unfair dismissal application. The matter was the subject of unsuccessful conciliation conducted on 2 September 2020.
[4] On 17 September 2020, a Pre-Hearing Conference/Conciliation was conducted by the Commission. Shortly before the commencement of this proceeding, JFMLAW filed a Form 54 - Notice that lawyer or paid agent has ceased to act for a person. During the Pre-Hearing Conference/Conciliation the applicant, who was unrepresented, indicated that she opposed permission being granted for the employer to be represented by lawyers or paid agents. The Commission issued Directions which established a timetable for the Parties to file and serve all evidence and submissions that each relied upon in respect to the representation question and the substantive matter.
[5] In accordance with the Directions, the Parties have provided their respective submissions on the representation question. In a document dated 1 October 2020, Mapien provided written submissions seeking permission to represent the employer. On 16 October 2020, the applicant provided written submissions in support of her opposition to the employer being granted permission to be represented by lawyers or paid agents.
[6] I have examined and considered the documentary material provided by the Parties in respect of the representation question. In particular, I have carefully considered the submissions in support of permission being granted made on 1 October 2020, by Mapien as the basis for this Decision.
[7] The question of representation in proceedings before the Commission is governed by section 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.
(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
[10] Subsection 596 (2) of the Act includes three factors which separately or in combination, provide 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, Mapien have made written submissions which asserted that those factors found in subsections 596 (2) (a) and (b) of the Act, respectively involving, complexity/efficiency, and inability/effectively, operated to provide basis for the Commission to grant permission for the employer to be represented by paid agents. In particular, the submissions made on behalf of the employer emphasised that there was complexity arising from the serious grounds upon which the applicant was dismissed, and the matter involved factual disputes which required cross examination of witnesses which would add to the complexity of the case.
[12] Conversely, the applicant objected to the employer being granted permission for representation particularly because the employer was a large organisation with a breadth of in-house human resource personnel, and that the matter lacked the required complexity. The applicant also asserted that she would be placed at a significant disadvantage if the employer was represented by lawyers or paid agents.
[13] The submissions made in support of permission being granted for the employer to have representation asserted that the matter involved complexity because of the serious nature of the reasons for the dismissal of the applicant, and further complexity was said to arise from factual disputes that would require cross examination of witnesses. In addition, it was asserted that complexity would arise from circumstances where the employer's national HR manager, Ms Lawson, was likely to be called as a witness and required to represent the employer. It was submitted that these identified complexities would be dealt with more efficiently with the involvement of a paid agent.
[14] Upon examination of all of the material which has been filed, and a consideration of any contests that may arise from it, it is clear that the matter is not complex. The serious nature of the reasons for the dismissal of the applicant, and the requirement for cross examination of witnesses are issues and processes that regularly arise in unfair dismissal arbitrations.
[15] Consequently, although the Commission generally recognises and appreciates the assistance that a paid agent might provide, and which ordinarily would enable the matter to be dealt with more efficiently, the prospect of such assistance should be contemplated in cases where clear complexity can be identified. This is not the case in this instance.
[16] The submissions for the employer asserted that if permission was not granted, its national HR manager Ms Lawson, would be required to provide evidence and also conduct the case for the employer. Further, it was submitted that the employer's human resources function did not include persons with expertise and experience in contested arbitration matters before the Commission. In these circumstances, it was asserted that the employer would be unable to represent itself effectively, and that it would be unfair not to allow it to be represented.
[17] The submissions made by the applicant challenged the asserted inability of the employer to effectively represent itself in the absence of lawyers or paid agents. The applicant submitted that the employer had a multiple number of human resources specialists that had the requisite capabilities to conduct the case on behalf of the employer.
[18] Upon examination of the submissions made on this point, I recognise that the employer may understandably have some difficulties if its national human resources manager, Ms Lawson, was required to provide evidence and also conduct the case for the employer. However, this position, and the difficulties associated with being both a witness and advocate would also be experienced by an unrepresented applicant.
[19] The issue of fairness between the Parties is a matter of recognised significance. In this instance, the submissions made on behalf of the employer were not framed under subsection 596 (2) (c) of the Act. However, it was asserted that it would be unfair to the employer if it was not allowed to be represented.
[20] The applicant submitted that she would be at a significant disadvantage if the employer was granted permission to be represented by lawyers or paid agents.
[21] In this instance, if permission for the employer to be represented was granted there would appear to be a significant imbalance created because the applicant would be representing herself while the employer obtained the assistance of external representation.
[23] In the present circumstances, applying in particular, the reasoning contained in the Judgment in the Warrell case, unnecessary formality would be created by the granting of permission for the employer to be represented. Further, a manifest unfairness between the respective Parties would emerge if permission was granted and an imbalance created between an unrepresented applicant against the employer's external representatives. The resultant imbalance created by the appearance of more advantageous representation of the employer against the applicant should be avoided, particularly in circumstances where complexity has not been established. Therefore, the fairness criterion has, in this instance, operated strongly against the granting of permission.
[24] 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.
Printed by authority of the Commonwealth Government Printer
Tas Manoleskos
Valspar Paint