AB v Employer

[2021] FWC 5279

[2021] FWC 5279

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.789FC - Application for an order to stop bullying

AB
v
Employer; XY
(AB2021/352)

COMMISSIONER HUNT BRISBANE, 26 AUGUST 2021

Application for an FWC order to stop bullying – legal representation.

[1] This matter concerns an application made by the Employer and Mr XY for permission to be represented by a lawyer at a hearing where employee Ms AB alleges she is being bullied at work by Mr XY.

[2] After seeking the views of the parties, and there being no objection to my proposal, I have decided to make a confidentiality order in respect of the parties and an additional employee of the Employer at this time, as the matters raised deal with allegations of sexual impropriety at work. I consider it fair for Mr XY not to be exposed in this interlocutory decision to the publication of his name. I consider it necessary to make the order with respect to Ms AB and the Employer, together with the Employee Relations Manager of the Employer so that links cannot be drawn to Mr XY.

[3] I will hear from the parties whether it is necessary for the confidentiality order to be in place for the substantive decision I expect to write following a hearing of this matter.

[4] A telephone conference was convened on 10 August 2021. Ms AB was represented by Ms Merinda Foster, Senior Industrial Officer, Australian Municipal, Administrative, Clerical and Services Union (ASU), and Ms Tracey Coorey, Social and Community Services Organiser, ASU. Mr XY and the Employer were granted leave to be represented by Mr Dan Pratt, Principal, and Mr Stephen Hughes, Principal Lawyer of Franklin Athanasellis Cullen (FAC Law) for the telephone conference. Ms CD, Employee Relations Manager attended.

[5] An objection was made by the ASU that Ms CD is legally qualified, and on that basis, leave should not be granted for Mr XY and the Employer to be represented. I considered it appropriate under the circumstances to grant leave for the telephone conference.

[6] Section 596 of the Act provides as follows:

“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.

(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;

that is representing the person; or

(c) is a bargaining representative.”

[7] Following the conference, on 10 August 2021, submissions were filed by FAC Law on behalf of Mr XY and the Employer, seeking leave to be granted for Mr XY and the Employer to be represented at the hearing listed for 8 October 2021. The submissions are reproduced, as is relevant, below;

“……..The applicant is represented by skilled and experienced advocates employed by the Australian Municipal, Administrative, Clerical and Services Union.

[Mr XY] will be a key witness and a party. He would be unable to effectively represent himself in those circumstances.

The employer is a large [redacted] business with dedicated human resources staff, some that have qualifications in law. However, the employer does not employ staff who possess skills or experience in running hearings in the Fair Work Commission. ln those circumstances, the employer would not be able to represent itself effectively either.

The submission is therefore that it would be unfair to refuse [Mr XY] permission to be represented in circumstances where a skilled and experienced union advocate was acting for the applicant. Whilst the employer’s position is a little different, it too is unable to effectively represent itself as effectively as the applicant’s representatives could represent the applicant.

As to efficiency, the submission is that the hearing will run much more efficiently if [Mr XY] and the employer are allowed to be represented. The reasons for that submission are that [Mr XY] and the employer cannot effectively represent themselves in a hearing.

As to complexity. the submission is that whilst not particularly complex in law, there are still some intricate matters of law that legal representation may assist the Commission with. For instance, the nature of informal exchanges between manager and subordinate that may not be “management action” and the test of unreasonableness. There are also a substantial number of contested facts in this matter. Effective cross-examination in contested factual matters will assist the Commission forming a view as to which factual accounts are to be preferred.

For the foregoing reasons the submission is that it would be fairer and more efficient if [Mr XY] and the employer are allowed legal representation. Accordingly, the submission is that this case presents as an appropriate one for the exercise of the Commission’s discretion to grant permission for [Mr XY] and the employer to be represented.”

[8] On 20 August 2021, the ASU filed the following submissions relevant to representation:

“1. [Ms AB] has filed an Application for an order to stop bullying in the Fair Work Commission under s.789FC of the Fair Work Act 2009 (“the Act”).

2. [Ms AB] is represented by the Australian Municipal, Administrative, Clerical and Services Union Queensland (Services and Northern Administrative) Branch (‘the ASU’).

3. Franklin Athanasellis Cullen Pty Ltd has sought permission from the Fair Work Commission to represent the Respondents, [Mr XY] and [the Employer] in these proceedings.

4. Franklin Athanasellis Cullen submits that [Mr XY] and [the Employer] are unable to effectively represent themselves in a hearing before the Fair Work Commission (“FWC”).

5. The ASU objects to the FWC granting leave for legal representation to appear on behalf of the Respondents in this matter.

6. S596(2) of the Act provides:

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.

7. The legislative requirements have not been met in this matter.

8. The ASU submits that [the Employer] is a large organisation with a dedicated Human Resources team and employs a specialized Employee Relations Specialist, [Ms CD]. [Ms CD] has been directly involved in this matter, has previously participated in matters before the FWC, has over 20 years’ experience in Human Resources and holds a Bachelor of Business, a Bachelor of Laws and a Graduate Diploma in Legal Practice.

9. In Hamilton v Carter Holt Harvey Wood Products Australia Pty Ltd Deputy President Bartel determined that the employer was able to represent itself efficiently with its dedicated inhouse legal counsel, despite its legal counsel being an inexperienced junior lawyer. Deputy President Bartel found that the matter would be dealt with more efficiently without external legal representation as “access to personnel who have, at the least, a rudimentary knowledge of court processes and rules of evidence and who are not themselves witnesses in the case are matters that bear on the effective representation of a party.”

10. The ASU submits that [Ms CD] is not a witness in this matter and holds the relevant qualifications, skills and experience to efficiently represent [Mr XY] and [the Employer]. With [Ms CD’s] experience, there is no valid reason for the FWC to grant permission for Franklin Athanasellis Cullen to appear in this matter.

11. Franklin Athanasellis Cullen has made submissions that this matter is not particularly complex at law. This is not disputed.

12. In paragraph 7 of its submissions, Franklin Athanasellis Cullen asserts that effective cross examination of witnesses will assist the FWC in forming a view about which contested factual matters should be preferred.

13. In Rodney James Rodgers v Hunter Valley Earthmoving Company Pty Ltd the employer sought legal representation on the basis its legal representative could assist the FWC in efficiently managing evidence, complex legal arguments and the requirement of forensic cross-examination of the Applicant. Commissioner Harrison denied the employer’s request to seek leave to appear and found that “Without prejudging the merits or otherwise of the substantive application, on my reading of the submissions and witness statements I am of the opinion that this is not a matter which requires forensic cross-examination or is of a complex nature”.

14. The ASU contends that if witness cross-examination is required, [Ms CD] has the relevant expertise to be able to undertake this on behalf of [Mr XY] and [the Employer].

15. In conclusion, the ASU submits that this matter will not proceed more efficiently if the FWC grants permission for Franklin Athanasellis Cullen to appear on behalf of [Mr XY] and [the Employer].”

[9] On 23 August 2021, reply submissions were filed by FAC Law on behalf of Mr XY and the Employer for consideration:

“1. The union submission (paragraph l0) advocates that [Ms CD] could represent [Mr XY] and not Franklin Athanasellis Cullen (FAC). That amounts to a submission about who would represent a party, rather than whether it is fair and efficient to allow that party to be represented (see: New South Wales Bar Association [2014] FWCFB 1663 at [24]. Accordingly, that submission should be rejected.

2. The union submission (paragraph 13) refers to the decision in Rodgers v Hunter Valley Earthmoving Company Pty Ltd[2009] FWA 572 (Rodgers) as supporting the assertion that the Commission in this case is unlikely to be assisted by cross-examination on contested versions of essential facts. However, in Rodgers, the Commission had before it all of the witness statements. It was thus able to form a preliminary view about how likely it was to be assisted by cross-examination on the facts. ln that case, which turned on its own facts, the Commission also noted, at [3], that the party seeking leave had in its employ a Mr McCowan, whose substantial history of industrial advocacy in the coal industry was noted by the Commission. ln the present case, there are no witness statements before the Commission and the union’s assertion is (again it appears) that [Ms CD], who has no such experience akin to the of Mr McCowan in Rodgers, ought to represent [Mr XY] rather than FAC. On that basis too, those submission[s] should be [rejected].”

Consideration

[10] The decision of Flick J in Warrell v Walton¹addresses the obligation to strike a balance between the objective of an informal determination process with equity and efficiency considerations depending on the circumstances of a particular matter:

“[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 (Cth)...”

[11] The decision to allow a party to be represented in a matter is discretionary; it is not automatic. The discretion afforded to the Commission will be exercised on the facts and circumstances of the particular case against the legislative tests.²

[12] The application before the Commission is an anti-bullying application. Ms AB’s employment is on foot, and it is important that the relationship be maintained without too much scarring as a result of the substantive hearing of the matter.

[13] Ms CD is the Employer’s Employee Relations Manager. It is clear that the Employer would prefer Ms CD not appear as an advocate in the proceedings, and instead seeks permission for FAC Law to represent it. I consider the decision in Hamilton 3 can be distinguished from the matter before me. In Hamilton, the matter being determined was an unfair dismissal claim. Once the employment relationship is severed, it is available for any in-house personnel to represent a respondent as fiercely as they see fit. It is entirely appropriate for applicants in unfair dismissal applications to be cross-examined by in-house representatives as there is no risk of damage to the employment relationship as it no longer exists.

[14] The Employer in the matter before me is at liberty to take any course of action it wishes during the hearing of the substantive application. It is free to make concessions relevant to Mr XY’s alleged conduct, and any of its witnesses may agree with the evidence given by Ms AB.

[15] An Employer in an anti-bullying application is not always a respondent as such; rather it is an interested party. The person named or persons named are the true respondent(s) in an anti-bullying application. Many a time I have had an employer appear before the Commission in an anti-bullying preliminary conference unsure of its position and allegiance. Sometimes an employer in proceedings of this type will find their allegiance falls with an applicant, sometimes with a person named, sometimes in between, or they may need to see further evidence before their position can be determined.

[16] Ms AB has made an assumption that Ms CD will not give evidence before the Commission. She has submitted that Ms CD holds the relevant qualifications to represent the Employer and Mr XY at an arbitrated hearing as the advocate. I have not heard any relevant evidence as to Ms CD’s capability; simply submissions have been made by both sides informing the Commission as to Ms CD’s legal qualifications.

[17] It may be the case that Ms CD does give evidence before the Commission. That is a matter for the Employer. The Employer’s material is not required to be filed until 22 September 2021.

[18] Noting that Ms CD must continue to work with Ms AB, and Ms AB is presently at work, I consider it is appropriate to have regard for the relationship between the two employees. In my view, the requirement for Ms CD to continue to provide as close to an impartial position as far as it is practicable to do so for any ongoing employment matters, adds to the complexity of the matter to be determined by the Commission. That is, if Ms CD is tasked to be the advocate in the proceedings and is required to strongly cross-examine Ms AB on the many matters that have been raised, there is, in my view, a strong prospect of the relationship between the two becoming combative prior to the hearing being conducted and post-hearing.

[19] Further, noting that the Employer is not keen on having Ms CD or any other internal employee appear as an advocate in the proceedings, noting the employment is on foot, I consider that the Employer is unable to represent itself effectively. That is not to say that in every anti-bullying hearing there becomes a right for representation. I have had regard to the circumstances in this matter where Ms AB is presently at work. She is not absent on paid or unpaid sick leave. Between now and when the application is determined by written decision, which is some months away, she deserves to be able to approach management and the HR team of the Employer to have any new matter addressed, whether related to Mr XY or not. I do not consider it appropriate for the Employer to have to side-line Ms CD from any ongoing dealings with Ms AB on account of any potential conflict of interest in her preparing to advocate for the Employer in the hearing.

[20] I am satisfied it would be unfair not to allow the Employer to be represented because the Employer is unable to represent itself effectively.

[21] If the Employer had one or more skilled advocates who regularly appeared before the Commission in arbitrated matters, I would be unlikely to come to the same conclusion as above. In that case, the in-house advocate could be side-lined from dealing with general employee relations matters given their position as an advocate before the Commission which would require the person to often be adversarial.

[22] Relevant to the issue of Mr XY seeking to be represented by FAC Law, it is not a matter for Ms AB to determine that the most appropriate representative of Mr XY is Ms CD. Mr XY is entitled to seek representation if he so chooses. He is entitled to the benefit of legal advice. Ms CD is, it would appear, unable to provide legal advice to Mr XY.

[23] Mr XY might seek legal advice in the course of the hearing. While he certainly cannot be coached while a hearing is proceeding, having had the benefit of being present while evidence is given to the Commission, he is entitled to obtain legal advice which cannot be provided by Ms CD.

[24] Noting that Ms AB is represented by the ASU, with skilled and experienced advocates, I expect that Mr XY will spend some time being cross-examined. He may require legal advice in the preparation of any oral closing submissions he wishes to make. I consider it would be unfair not to allow him to be represented because he is unable to represent himself effectively.

[25] I am further satisfied that the matter for Mr XY is a complex matter. He is tasked with dealing with many allegations of specific instances of bullying and being asked questions relevant to future predicted conduct in the workplace. He is likely to be asked questions by either Ms AB or by me relevant to any proposed orders that could be made against him. The consequences of orders being made against Mr XY and any potential breach of such orders is not insubstantial.

[26] It is only necessary that one of the criteria in s.596(2) be met. I have determined that s.596(2)(a) and (b) have been met relevant to both the Employer and Mr XY.

[27] Having satisfied myself that the requirements of s.596(2)(a) and (b) have been met, for the reasons set out above, I exercise my discretion under s.596(2)(a) and (b) of the Act to grant permission for Mr XY and the Employer to be represented by a lawyer.

[28] The Commission will, of course, afford to Ms AB all necessary and appropriate assistance at the hearing to ensure procedural fairness to her. There will be no disadvantage to Ms AB, and if at any time Ms AB or the ASU has questions relevant to issues or processes before the Commission, this will be accommodated.

COMMISSIONER

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1 [2013] FCA 291.

2 Rodgers v Hunter Valley Earthmoving Company Pty Ltd [2009] FWA 572.

 3   Hamilton v Carter Holt Harvey Wood Products Australia P/L, Bartel DP, 19 June 2012 [2012] FWA 5219.