The attached document replaces the document previously issued with the above code on 14 May 2018.

On application of the Applicant, and by consent of the Respondent, the name of the Applicant has been redacted (by unpublished Order of Deputy President Anderson 18 September 2018 PR700623).

[2018] FWC 2696

Fair Work Act 2009

Section 394 - Application for unfair dismissal remedy

Application for an unfair dismissal remedy - section 596 representation - request by employer opposed by applicant - efficiency of proceedings - fairness between the parties - permission refused

[1] Xxxxxxxx Xxxx 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 Apple Pty Ltd (Apple or 'the employer'). He claims to have been unfairly dismissed on 12 February 2018.

[2] The employer claims that Xx Xxxxx the Applicant's dismissal was not unfair in that he was dismissed for serious misconduct following an internal investigation. On 26 March 2018 conciliation of the application was conducted by a Commission-appointed conciliator. It was not resolved. It was then referred to a member of the Commission for hearing and determination.

[3] On 4 April 2018 lawyers for Apple filed a Notice of Representative Commencing to Act (F53).

[4] On 6 April 2018 I conducted a directions hearing.[1] I listed the matter for hearing. I made orders for the filing of materials. At the directions hearing, both Xx Xxxxx the Applicant and Apple sought to be legally represented. I granted permission for the purposes of that proceeding. Ms Birss of Mellor Olsson for Xx Xxxxx the Applicant indicated that Xx Xxxxx the Applicant did not intend to be legally represented at the hearing. The employer advised that it would continue to seek permission to be legally represented. I directed that written submissions be made on representation.

[5] I received written submissions on representation from the employer on 24 April.[2] Xx Xxxxx The Applicant confirmed on 27 and 30 April that he would be self-represented. On 4 May he filed written submissions opposing the employer's request.[3]

[6] This decision determines the employer's request for representation at the hearing on 5, 6 and 7 June 2018.

[7] 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;

(d) is a bargaining representative."

[8] The granting of permission under section 596 involves a two-step process. The first is that there must be satisfaction that at least one of the criteria in section 596(2) is satisfied. The consideration required by this first step "involves the making of an evaluative judgment akin to the exercise of discretion".[4] The second is that the discretion conferred by section 596(2) must be exercised in favour of the applicant for permission.[5]

[9] The meaning of section 596 was recently considered by a Full Bench of this Commission in Fitzgerald v Woolworths Limited.[6] While that decision concerned whether a lawyer not acting as an advocate could be said to be "representing" a party, the Commission made the following general observations about the application of section 596 and its legislative history:

"[30] There is little authority on the scope or operation of s.596. Only two decisions are of significance. In Warrell v Fair Work Australia[7] the Federal Court (Flick J) dealt with a situation where, in an unfair dismissal proceeding before Fair Work Australia (as the Commission was then known), a lawyer was permitted to appear on behalf of the employer in a proceeding without the Senior Deputy President hearing the matter having given consideration to the requirements of s.596. The Court said:

[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 which provided in relevant part as follows:

1. FWA is intended to operate efficiently and informally and, where appropriate, in a non-adversarial manner. Persons dealing with FWA would generally represent themselves. Individuals and companies can be represented by an officer or employee, or a member, officer or employee or an organisation of which they are a member, or a bargaining representative. Similarly, an organisation can be represented by a member, officer or employee of the organisation. In both cases, a person from a relevant peak body can be a representative.
2. However, in many cases, legal or other professional representation should not be necessary for matters before FWA. Accordingly, cl 596 provides that a person may be represented by a lawyer or paid agent only where FWA grants permission...In granting permission, FWA would have regard to considerations of efficiency and fairness rather than merely the convenience and preference of the parties.

[32] The other authority is the Full Bench decision in NSW Bar Association v McAuliffe.[8] That decision is, for relevant purposes, authority for two propositions. The first is that the power to grant or refuse permission for legal representation in s.596(2) does not carry with it the power to select who that legal representative would be either by reference to the individual identity of the lawyer or whether the lawyer is a barrister or solicitor, nor did it empower the Commission to choose which member of a party's legal team might represent the party in proceedings. Section 596(2) was not intended to interfere with a party's right to choose who its legal representative would be. The second proposition is that an error in the application of s.596 at a hearing does not necessarily require the decision that results from the hearing to be quashed if it does not result in any prejudice to a party."

[10] The following extract of the decision of the Commission in CEPU v UGL Resources Pty Ltd[9] is also relevant:

"...Before permission to be represented can be granted, a person must be unable to represent himself, herself or itself effectively, and following the plain language definitions of the Macquarie Dictionary (Revised Third Edition) and the Australian Concise Oxford Dictionary (Third Edition), this means the person must be unable to represent himself, herself or itself in a manner that creates a "striking impression", or which has an "impressive" effect or which is "powerful in effect".[10]

[11] Apple submit that proceedings would be more efficiently conducted with representation. It submits that aspects of the matter involve complexity, particularly the examination of witnesses on disputed facts concerning sensitive matters. It points to the fact that its current representatives have familiarity with the matter. It submits that whilst it has in-house legal capacity the relevant in-house representative does not have specialist legal expertise in employment law or litigation. Further, its human resources professional with most familiarity with the matter will be a witness for Apple making it difficult for that officer to represent the employer.

[12] Xx Xxxxx The Applicant opposes the request. He says that it would be unfair to grant permission when he is now self-represented. He also says that Apple is a large organisation with substantial in-house legal and human resources.

[13] Apple can only be represented by a lawyer (or paid agent) at the hearing with permission of the Commission.[11] 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.

[14] A relevant 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 a matter before the Commission must normally appear on its own behalf (to paraphrase the words of Flick J in Warrell). 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."[12]

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

[16] This matter concerns a conduct based dismissal. It would appear that disputed facts (some of which may be of a personal or sensitive nature) will need to be determined, particularly events involving two persons (one of which was the applicant) including whether certain conduct was consensual.

[17] I accept that, in a case of disputed facts, representation by those able to conduct skilled cross examination may assist the efficiency of proceedings:[13]

"I judged that, in these circumstances and as both parties sought to be represented accordingly, to grant the permission would lead to more efficiency in the conduct of the hearing, by enabling skilled cross examination to assist in the evaluation of the conflicting evidence, which otherwise might become a complex and inefficient process if the parties were self-represented."

[18] However, aside from that aspect, the matter before me has no inherent complexity. There are no jurisdictional issues raised by the employer that raise complex questions. This does not appear to be a case involving substantial documentation requiring forensic analysis. Dealing with applications involving disputed facts is a common experience in the unfair dismissal jurisdiction.

[19] Considerations of efficiency and complexity marginally weigh in favour of granting permission. Section 596(2)(a) is made out but to that extent only. If Apple (or Xx Xxxxx the Applicant for that matter) is represented by a lawyer, these proceedings are likely to be dealt with more efficiently.

[20] The fact that sub-section (1) of section 596 is made out does not compel the exercise of my discretion in favour of the person requesting permission.[14] All factors in the section need to be considered, including fairness. 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.

[21] I accept that it is difficult, and (depending on the circumstances) potentially unfair, to require a company witness to act as its representative whilst at the same giving evidence. If Apple's only internal advocate was its human resource officer who it intends giving evidence, that would weigh in favour of granting permission.

[22] However that is not the case. Apple is able to be legally represented at the hearing without an externally appointed legal representative. It is a substantial business with in-house resources, including legal capacity. Apple seeks permission because, it is said that "the in-house legal representative with principal carriage and knowledge of this matter does not have specialist legal expertise in employment law or litigation."[15]

[23] Section 596(2)(b) concerns itself with "effective" representation. For a party to be effectively represented, that party is entitled to expect its representative to make a "striking impression" or be "powerful in effect".[16] This requires the nature of the hearing to be taken into account.

[24] I also note that it is not the Commission's role to determine who the representative of a party is or should be.[17] Nor should it be assumed that persons working in industry with legal qualifications are necessarily effective representatives at a hearing dealing with industrial issues.

[25] The degree of specialisation of an external lawyer versus an internal lawyer is a relevant consideration but not determinative. Even allowing for cross examination over disputed facts, this case is orthodox in nature. I take into account that Apple's external legal practitioner is on the file and has had conduct of the matter to date. A decision requiring arrangements for legal representation to be altered in the lead-up to a hearing is disruptive. However, sufficient time exists between the date of this decision and the first day of hearing (5 June) for an in-house lawyer to consider what would be required of them at the hearing (including cross examination) and prepare accordingly. The Commission is not a court of law and rules of evidence are important but do not strictly apply. Procedures can be, and often are, more informal. To the extent appropriate, a degree of flexibility can be and is provided to an advocate if questions or submissions are poorly framed as a consequence of a lack of litigation experience.

[26] Having regard to the overall circumstances, I am not satisfied that Apple's in-house legal representative would be unable to effectively represent the employer at the hearing of the matter. Section 596(2)(b) is not made out. Section 596(2)(b) considerations are a neutral factor.

[27] Section 596(2)(c) considerations are altogether different. Xx Xxxxx The Applicant will be self-represented and, should I grant permission, the employer will be represented by an experienced external lawyer engaged by Apple specifically for the purpose of defending the case he is prosecuting. Xx Xxxxx The Applicant has no legal or human resources expertise.

[28] Apple submit that it has "assumed that Xx Xxxxx the Applicant intends to be legally represented at the hearing" because it has not been formally notified otherwise.[18] I note that Xx Xxxxx the Applicant's legal representative appearing at the directions hearing on 6 April 2018 did not comply with Commission requirements to file a Notice of Representative Commencing to Act (F53), nor a Notice of Ceasing to Act (F54) under rule 11 of the Fair Work Commission Rules 2013. This omission notwithstanding, Apple were advised by Xx Xxxxx the Applicant's representative at the directions hearing on 6 April that she would be ceasing to act and that Xx Xxxxx the Applicant would be self-represented at the hearing of the matter. In those circumstances, Apple has been on notice of Xx Xxxxx the Applicant's intentions since that time. To the extent required, Xx Xxxxx the Applicant formally confirmed his position in his written submissions of 27 and 30 April and 4 May.

[29] I conclude that fairness between Apple and Xx Xxxxx the Applicant weigh strongly against granting permission. Section 596(2)(c) has not been made out by Apple.

[30] Considerations of efficiency in proceedings weigh marginally towards a grant of permission under section 596.

[31] Issues of fairness between the parties, in the context of this matter, weigh strongly against such a grant.

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

[33] Despite Apple already having an external legal representative on file, I am not satisfied that permission for Apple to be represented by an external legal practitioner at the hearing should be granted. I refuse the request.

[34] This application remains listed for hearing across three days, 5, 6 and 7 June. I have taken into account that this is a week earlier than initially listed. The parties have known of these revised dates since 1 May. For the aforementioned reasons, I consider that sufficient time exists for Apple to be effectively represented at the hearing.

[35] I note that, in accordance with my directions, Apple is required to shortly file its material (by 18 May). I also note that rule 12(1)(b) of the Fair Work Commission Rules 2013 enables a party to be represented by an external legal practitioner, without permission, for the purposes of lodging written materials in connection with proceedings. I have made no contrary direction under rule 12(2). Accordingly, Apple is entitled to utilise the services of its legal representative on file should it wish to do so for the purposes of the preparation and lodgement of materials.

[36] My directions of 1 May 2018 remain unaltered.

[1] Directions 6 April 2018, Deputy President Anderson

[2] Respondent's Written Submission on Representation 24 April 2018

[3] Applicant's Written Submission on Representation 4 May 2018

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

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

[6] Fitzgerald v Woolworths Limited [2017] FWCFB 2797, 17 October 2017 VP Hatcher, DP Dean, Wilson C

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

[8] NSW Bar Association v McAuliffe [2014] FWCFB 1663

[9] [2012] FWA 2966, Senior Deputy President Richards

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

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

[13] Nain v Southern Cross Care [2014] FWC 4675 at [5] per Lewin C

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

[15] Respondent's Written Submission on Representation, paragraph 1.16(a)

[16] CEPU v UGL Resources Pty Ltd [2012] FWA 2966 per Senior Deputy President Richards at [16]

[17] NSW Bar Association v McAuliffe [2014] FWCFB 1663 at [32]

[18] Respondent's Written Submission on Representation, paragraph 1.5

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