Fair Work Act 2009

Section 394 - Application for unfair dismissal remedy

Twentieth Super Pace Nominees Pty Ltd T/A SCT Logistics

Application for an unfair dismissal remedy - representation - efficiency - fairness - permission granted

[1] Mr Wayne Wissell (Mr Wissell or the Applicant) has applied to the Fair Work Commission (the Commission) under section 394 of the Fair Work Act 2009 (the FW Act) for an unfair dismissal remedy in relation to his dismissal by Twentieth Super Pace Nominees Pty Ltd trading as SCT Logistics (SCT Logistics, the employer or the Respondent). He claims to have been unfairly dismissed on 30 May 2019.

[2] SCT Logistics oppose the application. It asserts that Mr Wissell was lawfully and fairly summarily dismissed for serious and wilful misconduct.

[3] On 22 July 2019 conciliation of the application was conducted by a Commission-appointed conciliator. It was not resolved. It was referred to me for hearing and determination.

[4] On 2 August 2019 I listed the matter for hearing on 10 and 11 October 2019. I directed that materials be filed by Mr Wissell and by SCT Logistics in advance of the hearing.

[5] My directions required any party seeking to be represented to request permission in writing. SCT Logistics seeks permission to be represented by a legal practitioner under section 596 of the FW Act.

[6] The request by SCT Logistics is opposed by Mr Wissell.

[7] This decision determines that question.

[8] The facts relevant to the issue of representation are generally not in dispute.

[9] The employer is a large business in the transport and logistics industry. It has limited internal human resource capability and relies in part on external human resource services. It has, in relation to this application, sought and obtained the assistance of a legal practitioner. Its response to Mr Wissell's application was made under the name of its external solicitor Mr Broadbent of Marsh & Maher Richmond Bennison Lawyers. It seeks to be represented at the hearing of the matter by its solicitor.

[10] Mr Wissell has also obtained specialist assistance in filing and advancing his claim. He is being represented by the Transport Workers Union of Australia (SA Branch) (TWU) which filed the application on his behalf. He intends to be represented at the hearing of the matter by Mr Boughey of the TWU. Mr Boughey has legal qualifications but is not admitted as a solicitor. He is familiar with industrial matters but, to date, has no significant experience in Commission advocacy.

[11] Mr Wissell is not required to seek permission to be represented by Mr Boughey given that Mr Boughey is not an admitted practitioner. In any event, section 596(4) of the FW Act excludes from that obligation legal practitioners who are employees or officers of an industrial organisation. The TWU is such an organisation.

[12] Section 596 of the FW Act provides as follows:

(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:
  • (i) an organisation; or
  • (ii) an association of employers that is not registered under the Registered Organisations Act; or
  • (iii) a peak council; or
  • (iv) a bargaining representative;

(c) is a bargaining representative."

[13] The granting of permission under section 596 involves a two-step process. The first is that at least one criteria in section 596(2) needs to be satisfied. The consideration required by this first step "involves the making of an evaluative judgment akin to the exercise of discretion".[1] The second is that the discretion must be exercised in favour of the applicant for permission[2] in the sense that the discretion concerns whether to grant permission, not whether to deny or withdraw an established right.

[14] SCT Logistics say that the employer's in-house human resource capability is limited and in any event does not extend to advocacy capability.[3] It submits that it would be unfair to require inexperienced human resource officers to undertake such a role particularly in a matter that is escalated to arbitration. It also says that Mr Wissell will be represented by a legally qualified officer of an industrial organisation, thus creating unfairness to the employer if it were required to be represented by an internal human resource officer without equivalent expertise.

[15] Further, SCT Logistics submit that the matter is likely to involve some complexity in adjudication.

[16] Mr Wissell opposes the request on multiple grounds.[4] He says that the default position in proceedings before the Commission is that parties normally represent themselves. He says that the factual matters are not likely to be in dispute and that the legal issues arising from the facts are not particularly complex. He says Mr Boughey, whilst legally qualified is an inexperienced advocate, whereas the legal practitioner seeking to represent the employer has considerable experience.

[17] SCT Logistics can only be represented by a lawyer (or paid agent) at the hearing with permission of the Commission.[5]

[18] Whether to grant permission is a discretionary matter to be made having regard to the factors set out in section 596(2) of the FW Act: efficiency (in the context of the complexity of the matter); fairness (in the context of the capacity of the person seeking permission to effectively represent themselves); and fairness between the parties.

[19] I agree with Mr Wissell that the starting point for the exercise of the discretion is that granting permission should be seen as a departure from the default position that a party in proceedings before the Commission must normally appear on its own behalf. This proposition is consistent with the statutory scheme:

"FWA is intended to operate efficiently and informally and, where appropriate, in a non-adversarial manner. Persons dealing with FWA would generally represent themselves."[6]

[20] I now turn to the considerations in section 596(2).

[21] This application concerns a summary dismissal based on alleged misconduct. Findings of fact will need to be made. It is possible, though yet to be seen, whether those facts are in material dispute. It is possible that they are not. If material facts are not in dispute, one aspect of potential complexity in proceedings is eliminated and proceedings could be conducted efficiently without a grant of representation.

[22] However determining an unfair dismissal application, even one predicated on agreed facts, may involve complex questions of law. In this matter, no jurisdictional issues arise. That eliminates another potential form of complexity. However, the legal principles concerning the character of conduct that strikes (or does not strike) at the heart of the employment relationship so as to warrant summary dismissal is likely to be in issue. Those principles are well established and not in and of themselves complex. Their application to particular facts may be. The matters of judgment involved in drawing conclusions from the facts in a summary dismissal case are not necessarily straightforward.

[23] On the material before me there is a limited extent to which these proceedings will be more efficiently conducted if the parties are represented by persons who can articulate what each contends is the proper application of relevant legal principles to the facts that gave rise to Mr Wissell's dismissal.

[24] Although stronger cases of efficiency taking into account complexity exist, I am nonetheless satisfied that section 596(2)(a) is made out. Granting permission for SCT Logistics to be represented by a lawyer in these proceedings would enable the hearing to be conducted more efficiently, taking into account complexity.

[25] The fact that sub-section (1) of section 596 is made out does not compel the exercise of discretion in favour of the person requesting permission.[7] All factors in the section need to be considered, including fairness (although not all need to be made out). Sub-sections 596(2)(b) and (c) require fairness to be considered in two contexts: fairness in the context of the capacity of the person seeking permission to effectively represent themselves; and fairness between the parties.

[26] Having regard to the overall circumstances, I find that internal SCT Logistics officers would be unlikely to "effectively" represent the employer in the true sense of the word.

[27] I conclude that it would be unfair not to allow SCT Logistics permission to represent itself effectively.

[28] I now turn to sub-section 596(2)(c) of section 596. This sub-section requires the Commission to take into account fairness between the person seeking permission (SCT Logistics) and other persons in the matter (Mr Wissell).

[29] Mr Wissell will be represented by a legally qualified but not admitted officer of an industrial organisation. To not enable SCT Logistics to avail itself of legal capability would be unfair. I take into account that Mr Boughey is not admitted and is not experienced, to date, in advocacy whilst the employer's intended representative is an experienced practitioner. Granting permission may result in some imbalance in representative experience between legally qualified persons and this could, notionally at least, be to Mr Wissell's disadvantage. However, the imbalance between two legally qualified persons with different levels of experience is not likely to be as great as the imbalance between a legally qualified but inexperienced person and an unqualified and inexperienced human resources officer.

[30] Having regard to fairness between the parties, it would be unfair to refuse the employer's request.

[31] The considerations of efficiency through effective representation weigh somewhat towards a grant of permission.

[32] The issue of fairness between the parties also weighs in favour of such a grant.

[33] In exercising discretion each factor in section 596(2) does not have to be made out although each is considered.

[34] On balance, I am satisfied that permission should be granted.

[35] Mr Wissell's application remains listed for hearing on 10 and 11 October 2019. It has been listed for hearing by determinative conference, subject to further order. My directions of 2 August 2019 provided both Mr Wissell and SCT Logistics with an opportunity to make additional submissions on the mode of determination. I have received further submissions from Mr Wissell supporting hearing by determinative conference. SCT Logistics has until 30 August to file such further material.

[36] I indicate that my decision to grant permission for SCT Logistics to be represented has taken into account the potential that the mode of determination may remain by determinative conference and that representatives granted permission may be appearing before me in that forum.

[1] Asciano Services Pty Ltd v Hadfield [2015] FWCFB 2618 at [19]

[2] Calleri v Swinburne University of Technology [2017] FWCFB 4187 at [36]

[3] Respondent's Submissions - Representation 9 August 2019

[4] Applicant's Submissions - Representation 16 August 2019

[5] Section 596(4) does not apply in this matter

[6] Explanatory Memorandum to the Fair Work Bill 2008 at paragraph 2291

[7] Warrell v Fair Work Australia [2013] FCA 291 at [24]

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