Adrian Meredith v Peter MacCallum Cancer Centre

[2013] FWC 5381

[2013] FWC 5381

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Adrian Meredith
v
Peter MacCallum Cancer Centre
(U2013/8626)

COMMISSIONER RYAN MELBOURNE, 5 AUGUST 2013

Application for relief from unfair dismissal.

[1] The Respondent has sought permission to be represented by a lawyer (counsel) pursuant to s.596 of the Act. The Applicant, who is self represented, opposes the grant of permission.

[2] The Respondent raises two grounds in support of the request for permission to be represented by a lawyer. The two grounds are as follows:

“s.596(2)(a)- efficiently- complexity

7. The Respondent refers to s.596(2)(a) of the FW Act. A very live issue in this application is the Applicant's capacity. It raises factual/medical considerations upon which the Commission must rule. Capacity is relevant to the question of valid reason and remedy.

8. Evidence is to be adduced from the Respondent's expert medical witness -A Prof. Doherty.

9. The Applicant contends that A Prof Doherty is wrong in his opinion. The Applicant intends to adduce expert opinion evidence from two health professionals.

10. On any view, there is a contest over medico-legal opinions. It is submitted this introduces a significant level of complexity into the arbitration. A proper and efficient ventilation of those issues is critical. Counsel has a duty to his client but also to the Commission and the process of arbitration. It is submitted it is more efficient generally if counsel appears in such a context. The Commission will be assisted if counsel raises and examines certain forensic/medico legal issues. The Commission is required to conduct a fair and just hearing: s.577 of the FW Act.

s.596(2)(b) and (c) - fairness- represent self effectively- person and other person

11. The Respondent refers to paragraph 5 above. If permission were not granted, Mr Davey will be required to appear for the Respondent. This is unfair because:

a) He will be required to both advocate and give evidence on behalf of the Respondent and then be subject to cross-examination by an untrained advocate;

b) As an untrained advocate himself, he will be required to assist the Commission in the orderly running of the hearing when he is opposed to a person suffering with a particular disability. For example: how does he know when to object and on what basis?

c) He will be required to cross-examine many current work colleagues. That unnecessarily intrudes upon the workplace dynamic between him (as a manager) and those who he manages; and

d) He does not bring the objectivity of a disinterested lawyer to the role of advocate - he participated in, and supported, the decision to terminate the Applicant's employment.”

[3] In response to the Respondent’s written submissions in support of the request to be represented by a lawyer the Applicant filed written submissions opposing the request.

[4] In a general submission against the request the Applicant contended as follows:

“The problem is that by introducing lawyers, we make the situation complicated. They introduce confusing words and complicated ways of doing things that may have an end result of tripping me up not because I am in the wrong but because I do not understand what they mean. If Rob, or another member of Peter Mac staff, were representing the hospital, they would not do this and we would have a level playing field.

I will state again that I do not believe that Dr Doherty's testimony is required. He wrote a report, which we can all refer to, and he will have nothing more of substance to say beyond what was written in the report. But, by him appearing, I have little choice but to introduce my own psychiatrist and psychologist, one of whom is in fact an expert on autism, in order to not only rebut the claims in his report, but furthermore to prove that, even if we accept his report, I have done what was required.

I petition that Peter Mac are well aware that they have no case, and their bringing lawyers into the equation is designed to scare me, to intimidate me and to try to make me panic so that I will say or do something that they can then use to hurt me. Their aim, by using lawyers, is not as part of procedural fairness, but rather it is aimed at making me earn my win.”

[5] In response to the particular submission made by the Respondent in relation to s.596(2)(b) and (c) the Applicant contended as follows in relation to Mr Davey the HR Manager and the employees of the Respondent who are being called by the Applicant to give evidence on behalf of the Applicant:

“Rob Davey does not work with these people. He works in Human Resources. The vast majority of them have never met Rob Davey. It will not affect his ability to work if he meets with them, just like it will not affect my ability to work with them by my representing myself, if I then win and they return to being my co-workers. If either of us is in the more difficult position, it is me, because these were my direct co-workers, and if I win then they will return to being my direct co-workers.

The commissioner has requested me to provide written submissions in the form of intended questions to the witnesses. This will make it even easier for Rob Davey to address.”

[6] In Warrell v Walton, Flick J said of s.596:

“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:

2291. 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.

2292. 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.

2296. In granting permission, FWA would have regard to considerations of efficiency and fairness rather than merely the convenience and preference of the parties.”  1

Consideration

Section 596(2)(a)

[7] The Respondent identifies that there will be a contest between the Respondent’s expert witness and the Applicant’s expert witnesses as to the mental health of the Applicant. The very existence of this contest leads the Respondent to contend that “this introduces a significant level of complexity into the arbitration.” I do not agree. I accept that as matters currently stand that the Respondent will call a witness who will attest as an expert that the Applicant has a disorder of the mind and that the Applicant will call witnesses to challenge the Respondent’s expert evidence. It is obvious that there is a contest between the Applicant and the Respondent over the Applicant’s mental health but the contest appears to be limited to a very narrow range of matters.

[8] The issue of the contest between the Respondent’s and the Applicant’s expert witnesses does not in my view add any deal of complexity to the unfair dismissal matter beyond that already existing in relation to this matter.

[9] I do not accept that the resolution of this contest will be able to be dealt with more efficiently if I permit the Respondent to be represented by a lawyer. The greatest impact on the Commission’s efficient dealing with this unfair dismissal application is the need to schedule hearings to avoid requiring the Applicant’s expert witnesses from having to cancel appointments with patients in order to attend the Commission. An arrangement has already been agreed to with the Respondent that their expert witness will give his evidence commencing at 2.00pm on the first day of hearing regardless of where the Applicant’s evidentiary case is up to.

[10] The Commission has both the capacity and the duty to efficiently conduct the hearing in this matter. Having the Respondent, but not the Applicant, represented by a lawyer will not enable the unfair dismissal matter to be dealt with more efficiently.

Section 596(2)(b) and (c)

[11] The Respondent has made a single submission covering both s.596(2)(b) and s.596(2)(c).

[12] The Respondent addresses the matter raised by s.596(2)(b) of the Act with the submission that it would be unfair to require that the Respondent be represented by Mr Davey, the Employee Relations Manager for the Respondent.

[13] The Respondent’s first ground of unfairness is that Mr Davey will be both an advocate and a witness. Unfairness does not necessarily arise simply because a person is both an advocate and a witness. The very nature of many proceedings where the employee and the employer are self represented requires both parties to be advocates in their own cause as well as the key, and sometimes the only, witness for their case.

[14] The Respondent’s second ground of unfairness is that Mr Davey is an untrained advocate. Unfairness does not necessarily arise simply because the Respondent’s employee advocate is untrained. In this matter the Respondent has already engaged lawyers and the Respondent’s lawyers could, if the Respondent so instructs, assist Mr Davey with the preparation of questions for examination in chief and cross examination of witnesses.

[15] It is also important to note that a refusal of a grant of permission to the Respondent to be represented at the hearing of this matter by a lawyer does not operate to prevent the Respondent from having and using its lawyers during the hearing. For example the Respondent’s lawyers could attend the hearing and listen to proceedings and provide notes to Mr Davey as the Respondent’s representative which would allow Mr Davey to object to questions put by the Applicant to witnesses.

[16] The Respondent’s third ground of unfairness is that Mr Davey will be required to cross examine many current work colleagues and that this “unnecessarily intrudes upon the workplace dynamic between him (as a manager) and those who he manages.” The list of witnesses provided by the Applicant do not identify any employee of the Respondent who would be a direct report to Mr Davey in his position as Employee Relations Manager. I accept that all employees of the Respondent may be “work colleagues” of Mr Davey and I accept that all employees of the Respondent may be “managed” by Mr Davey in his capacity as Employee Relations Manager, but this does not necessarily create unfairness for the Respondent.

[17] The unfairness referred to in s.596(2)(b) must arise because the Respondent is unable to represent itself effectively. The third ground of unfairness raised by the Respondent does not actually go to the issue contained in s.596(2)(b). The Respondent may well be effectively represented by Mr Davey even if Mr Davey’s cross examination of work colleagues “unnecessarily intrudes upon the workplace dynamic between him (as a manager) and those who he manages”.

[18] The Respondent’s fourth ground of unfairness is that Mr Davey does not bring the objectivity of a disinterested lawyer to the role of advocate because he participated in, and supported, the decision to terminate the Applicant's employment. In the very circumstances of this unfair dismissal matter it may very well be the case that Mr Davey may be a more effective representative for the Respondent than a lawyer simply because Mr Davey has participated in, and supported, the decision to terminate the Applicant’s employment.

[19] It would appear from the written submission of the Respondent that nothing said in the written submission addresses the specific requirement of s.596(2)(c) of the Act.

[20] That provision requires the Commission to take into account fairness between the Applicant and the Respondent. The question which arises from s.596(2)(c) in relation to the present matter is: Why would it be unfair to deny the Respondent permission to be represented by a lawyer taking into account fairness between the Applicant, who is self represented, and the Respondent? The Respondent’s written submission do not address this question or any aspect of s.596(2)(c).

[21] I am of the view that for the purposes of s.596(2)(c) of the Act in this matter fairness between the Applicant and the Respondent counts strongly against granting permission to the Respondent to be represented by a lawyer.

[22] The submissions of the Respondent suggest that the issue raised by s.596(2) is to be resolved on the basis that the Respondent will either be represented by a lawyer or by Mr Davey, the Employee Relations Manager. Such is not the case. There is nothing in the Act that would prevent the Respondent from being represented by employees other than Mr Davey or from being represented by a member of the Board of Directors of the Respondent. The Respondent could even have a group of employees represent it with specific employees dealing with specific aspects of the matter before the Commission. With over 2,500 employees and a 9 member Board of Directors it would appear that the Respondent is not limited to being represented by Mr Davey.

[23] Having regard to the decision of Flick J in Warrell v Walton and having considered the submissions of the Respondent and of the Applicant and having considered each of s.381, 577, 578 and 596 of the Act, I decline to exercise the discretion to grant permission to the Respondent to be represented by a lawyer.

COMMISSIONER

 1 Warrell v Walton [2013] FCA 291

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