Fair Work Act 2009

s.394 - Unfair dismissal

Unfair dismissal application filed out of time - permission to appear by a lawyer - efficiency - complexity - fairness to a party.

[1] Mr Artery was dismissed from his employment on 30 April 2021. Section 394(1) of the Fair Work Act 2009 ("the Act") requires Mr Artery to make his application for an unfair dismissal remedy within 21 days after his dismissal took effect, being midnight on 21 May 2021.[1] Mr Artery did not make his application until 24 May 2021 and therefore requires an extension of time.

[2] The Respondent has sought the permission of the Commission to appear by a lawyer pursuant to s.596 of the Act. This decision deals with the Respondent's application.

[3] A telephone directions hearing took place on 23 June 2021 and Mr Traill of Employsure Law sought permission to appear for the Respondent. Mr Artery appeared for himself and elected not to respond to the Respondent's application for permission at that time. Directions were made for the filing of evidence and submissions in relation to Mr Artery's application for an extension of time as well as the filing of submissions in relation to the Respondent's application for permission to appear.

[4] On 12 July 2021, being 3 days after the date set in the Directions, the Respondent filed a written submission supporting its application for permission. On the same day, Mr Artery indicated his opposition to legal representation.

[5] The Respondent's written submissions mostly comprise of a generalised summary of key decisions of the Commission, which is helpful to a degree. The submissions refer to principles such as:

(a) the appearance of a focused, experienced and sympathetic legal practitioner may be a welcome relief in dealing with the well-known difficulties experienced by courts and tribunals that are regularly dealing with self-represented litigants, particularly where mental illness is a factor (citing Applicant v Respondent [2014] FWC 2860 at [21]);

(b) where a party raises a jurisdictional issue, permission for representation will usually be granted (citing CEPU v UGL Resources Pty Ltd [2012] FWA 2966 at [23] and Calleri v Swinburne University of Technology [2017] FWCFB 4187 - perhaps referring to [36]-[37]);

(c) ultimately the issue is whether the grant of permission would enable the matter to be dealt with more efficiently. There will be circumstances where permission for legal representation may enable a matter to be dealt with more efficiently even though it is not particularly complex (citing Singh v Metro Trains Melbourne [2015] FWCFB 3502 at [16]);

(d) in respect of section 596(2)(b), whether it would be unfair not to allow the Respondent to be represented because the Respondent is unable to represent itself "effectively", having a level of expertise short of 'effective representation' may warrant permission (citing Titan Plant Hire Pty Ltd v Malsen [2016] FWCFB 5520 at [35] and referring to the possibility of a 'constructive denial of procedural fairness' arising); and

(e) an assessment of whether a party is able to effectively represent itself is not solely an assessment of the skills and education of the individual, but rather an examination of the resources available to a party as a whole (citing King v Patrick Projects Pty Ltd [2015] FWCFB 2679).

[6] The Respondent's submission about the actual level of complexity of the current proceedings is very brief. The Respondent's single point is that because the extension of time involves a 'jurisdictional question' the matter is likely to be dealt with more efficiently if permission is granted. The high point, and arguably the whole point, of the Respondent's submission in this regard, is contained in the following excerpt:

"...Additionally, we draw the Commission's attention to the decision in Calleri v Swinburne University of Technology [2017] FWCFB 4187. That matter involved a jurisdictional question which was not of itself especially complex, but within the context of a short jurisdictional hearing it was held that legal representation would assist the matter to be dealt with more efficiently. We submit that the same finding could reasonably be made here."

[7] The matter before the Commission is an application for an order under s.394(3) allowing Mr Artery a further period for his application to be made. Applications under s.394(3) are often described as 'jurisdictional' insofar as the Commission's jurisdiction to hear and determine unfair dismissal claims is only engaged when an application is made within time or if an extension of time is granted.

[8] In CEPU v UGL Resources (Project Aurora) [2012] FWA 2966 ("UGL") Senior Deputy President Richards made the general observation that that where a party seeks to agitate a jurisdictional issue then it would follow that representation by a lawyer would be a reasonable course. He reasoned that "jurisdictional issues by their nature are prospectively complex in their own right, and/or else may require a degree of familiarity with court and tribunal jurisprudence or authorities."[2]

[9] The "jurisdictional question" considered in Calleri v Swinburne University of Technology [2017] FWCFB 4187 was whether the applicant had served the minimum employment period, which in turn required a determination of whether the applicant had been engaged as a casual employee on a regular and systematic basis prior to his permanent appointment.[3] At first instance Commissioner Wilson described the complexity of the jurisdictional matter before him in the following way: [4]

"The relevant complexity in this particular matter is whether, in all the circumstances, the service of Mr Calleri may properly be regarded as continuous service for the purposes of the Act and whether, in any respect, any breaks in employment may be regarded as having broken the continuity of service. In themselves these matters are not especially complex, however within the context of a short jurisdictional hearing ostensibly to be focused upon the facts of the matter it was considered by me that legal representation by the Respondent would assist the matter to be dealt with more efficiently."

On appeal the Full Bench found no error in the Commissioner's approach.[5]

[10] In Caruana v Shace Toop Trading Trust T/A Toop & Toop Real Estate [2018] FWC 2231, Deputy President Anderson took a similar approach to the jurisdictional matter before him. His Honour described the complexity of the jurisdictional matters at [23]-[25]:

"In this matter, the coverage of the Real Estate Award 2010 (the Award) as it applies to Mr Caruana in his role as General Manager - Sales is directly in issue. Resolving questions of this nature involve complexity. Whether a modern award applies to an employee is not necessarily straightforward, particularly where the upper reaches of an award need to be examined in the context of managerial employees.

Mr Caruana also intends to advance the proposition that the employer is estopped from claiming that he is not covered by the Award given that (he says) the employer has previously claimed he is so covered. Legal principles of issue estoppel may arise.

I also note that Mr Caruana's reply to the jurisdictional objection claims that his annual earnings did not exceed the statutory high income threshold. This would appear to be a matter concerning the meaning of the phrase "annual rate of earnings" in section 382(b)(iii). It may involve some complexity depending on the submission being advanced, but I consider that it is likely to be less complex than the issue of determining award coverage."

[11] DP Anderson cited SDP Richard's general observation in UGL with approval (at [26]-[27]) and ultimately found that granting permission for the Respondent to be represented by a lawyer in the proceedings would enable the jurisdictional matter listed for hearing to be dealt with more efficiently (at [33]).

[12] Recently in Wellparks Holdings Pty Ltd t/as ERGT Australia v Govender[6] a Full Bench rejected the proposition that jurisdictional issues are 'by their nature' complex. The Full Bench said at [51]:

"...Some jurisdictional issues may properly be characterised as complex and others not. A case by case assessment is required, rather than the adoption of some general decision rule which assumes that all matters in which a jurisdictional issue arises are 'complex in their own right' and that 'representation by a lawyer would be a reasonable course'. To the extent that Senior Deputy President Richards is to be understood as expressing a contrary view, we respectfully disagree."

[13] The Respondent's submissions properly concede that "the mere fact that this is a jurisdictional hearing will not, of itself, ground a finding that the matter could be dealt with more efficiently by granting representation".

[14] The Respondent's submissions do not, however, identify any particular complexity within the current matter other than the fact that it is a 'jurisdictional hearing'. In fact, the Respondent's submissions reproduced above, basically concede that the present matter is not a complex one.

[15] From my preliminary review of the filed material, including the materials filed by the Respondent in preparation for the hearing, the Respondent's tacit concession is properly made. The facts relied upon by the parties in relation to the extension of time are not extensive and perhaps not even in contest. The primary facts focus upon Mr Artery's explanation for his delay rather than any conduct of the Respondent. Mr Artery's application was filed three days late and he faces a 'high hurdle'[7] to obtain an extension of time. The principles in this regard are well settled.

[16] The seemingly simple phrase in s.596 "it would enable the matter to be dealt with more efficiently, taking into account the complexity of the matter" has ironically proved complex to apply. Earlier decisions of the Commission have found:

• even if legal representation would enable a matter to be dealt with more efficiently, a lack of complexity in the matter may still mean that permission to appear is declined[8]; and

• even if a matter is invested with some complexity, the Commission must be satisfied that legal representation would enable the matter to be dealt with more efficiently.[9]

[17] There is an abundance of decisions that properly recognise, as a general proposition, that allowing a party to appear by way of a legal representative will enable matters to be dealt with more efficiently. Similarly, there is an abundance of decisions that properly recognise that the "normal" or default position under the statute is that parties appear for themselves unless permission is granted under s.596(2).

[18] The decision of Justice Flick in Warrell v Walton[10] is regularly referred to when considering applications under s.596. The root error made by the Commission at first instance was not that the Commission necessarily misapplied the criteria in s.596(2), it was that the Commission did not address the criteria at all.[11] His Honour made some observations about the significance of the original error by reference to the statutory scheme. His Honour observed that decisions under s.596 are not merely procedural (at [24]), that a failure to properly apply the criteria in s.596 "runs the very real risk that what was intended by the legislature to be an informal procedure will be burdened by unnecessary formality" (at [25]), and that the self represented applicant with brain damage, whose case was decided against him on matters including credit, suffered real prejudice as a result (at [26]).

[19] In my view there is a danger that the Commission can attach more importance to "the complexity of the matter" than the statute permits. The only test the Commission must apply under s.596(2)(a) is whether granting permission "would enable the matter to be dealt with more efficiently". In applying this test, the Commission must take into account the complexity of the matter, but it does not have to find that the matter is actually complex, nor does it have to find that a matter is more complex than other matters.

[20] As observed by Justice Flick, the significance of granting permission under s.596, or not granting permission for that matter, is potentially high. Parliament did not mandate that parties must represent themselves,[12] and Parliament separately catered for circumstances where it might be unfair to deny legal representation to a party (s.596(2)(b)).

[21] In my view, and in this context, the way in which the Commission must take into account the complexity of the matter is to address whether the complexity (or lack thereof) supports a finding that that the matter can be dealt with more efficiently or not. It is also possible that in some instances the complexity of the matter is a neutral consideration for the primary question.

[22] Mr Artery's application for an extension of time is not particularly complex. This reality is a factor that points against a finding that the matter will be dealt with more efficiently if permission is granted.

[23] I do however find that granting the Respondent permission under s.596 will nonetheless enable the matter to be dealt with more efficiently. The materials filed on behalf of the Applicant have been prepared in an ordered fashion, are focused only on the issues at hand and provide material assistance for the Commission's task. The risk cited by Justice Flick in Warrell v Walton that the "informal procedure will be burdened by unnecessary formality" has not [yet] materialised in these proceedings.

[24] As the Full Bench in Wellparks Holdings Pty Ltd t/as ERGT Australia v Govender recently noted[13]:

"The assessment of whether permission should be granted under s 596 involves a two-step process. The first step is to consider 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 a discretion'. It is only where the first step is satisfied that the second step arises, which involves a consideration as to whether in all of the circumstances the discretion should be exercised in favour of the party seeking permission. The satisfaction of any of the requirements set forth 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." [Footnotes omitted]

[25] In exercising my general discretion now available under s.596(2), I am mindful of Mr Artery's opposition to the granting of permission and also the general statutory scheme which emphasises informality and efficiency and requires the Commission to perform its functions in a manner that is quick, informal, avoids technicalities and is nonetheless open and transparent (per s.577). I also recognise that in applications under s.394 the applicant carries the burden of establishing a proper basis for an order under s.394(3) and that the Respondent's role in such applications is, in a practical sense, less significant than in other types of applications.

[26] I formally give permission for the Respondent to appear by a legal practitioner. In granting this permission I note that if circumstances change during the hearing the Applicant may apply under s.603 for the permission to be revoked.[14]

[1] Allowing for the operation of s.36(2) of the Acts Interpretation Act 1901 (Cth).

[2] CEPU v UGL Resources (Project Aurora) [2012] FWA 2966 at [23].

[3] See Joseph Calleri v Swinburne University of Technology [2017] FWC 2702 at [13].

[4] See Joseph Calleri v Swinburne University of Technology [2017] FWC 2702 at [9].

[5] Calleri v Swinburne University of Technology [2017] FWCFB 4187 at [33]- [38].

[6] [2021] FWCFB 268 at [51].

[7] Lombardo v Commonwealth of Australia as represented by the Department of Education, Employment and Workplace Relations [2014] FWCFB 2288 at [21], see also Jason Mooney v Mega Industries Pty Ltd [2021] FWCFB 2489 at [16].

[8] King v Patrick Projects Pty Ltd [2015] FWCFB 2679 at [15].

[9] National Tertiary Education Industry Union-NSW Division v The University of New England T/A The University of New England [2018] FWC 1913 at [14].

[10] Warrell v Walton (2013) 233 IR 335, [2013] FCA 291,

[11] Warrell v Walton (2013) 233 IR 335, [2013] FCA 291 at [11], [26]-[27].

[12] CEPU v UGL Resources Pty Ltd [2012] FWA 2966 at [7].

[13] Wellparks Holdings Pty Ltd t/as ERGT Australia v Govender [2021] FWCFB 268 at [48].

[14] Oratis v Melbourne Business School [2014] FWCFB 3869 at [7].

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