Applicant

[2014] FWC 7378

[2014] FWC 7378

FAIR WORK COMMISSION

DECISION

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

Applicant
(AB2014/1344)

COMMISSIONER BISSETT MELBOURNE, 31 OCTOBER 2014

Application for an FWC order to stop bullying - application to be represented by a lawyer or paid agent.

[1] An application has been made by the Applicant seeking orders from the Commission to stop bullying.

[2] In issuing directions for the hearing of the application I indicated that I would determine the matter of representation by a lawyer or paid agent for any party who wished to be so represented prior to the date of hearing. Parties seeking representation or objecting to the grant of representation filed written submissions in accordance with those directions. This decision is based on the parties written submissions.

[3] The employer and one of the named respondent employees have both requested permission to be represented by lawyers. The applications are opposed by the Applicant.

Legislation

[4] The Fair Work Act 2009 (the Act) relevantly states:

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.

Employer Submission

[5] The employer submits that the matter could be dealt with more efficiently, taking into account the complexity of the matter, if it was granted permission to be represented by a lawyer in the proceedings.

[6] It submits that the matter is made complex by the number of witnesses to be called; the numerous parts of the Applicant’s claim including being bullied, reprisals for making a complaint, and a failure to respond to the complaint; an alleged breach of privacy; and the personal and medical nature of some of the matters to be considered. The employer identifies at least eight witnesses - six of whom are named in some capacity in the Applicant’s application and indicates that it may seek an order to produce medical records of the Applicant.

[7] The employer also submits that the volume of material already submitted by the Applicant and the likely volume of material it will submit will also add to the complexity of the matter.

[8] The employer says that, to the extent possible, its legal representative will represent the interests of the respondent employees.

[9] For these reasons that employer submits that permission should be granted as it will enable the matter to be dealt with more efficiently given the complexity of the matter.

Respondent employee submission

[10] One respondent employee has sought permission to be represented by a lawyer or paid agent and made a submission in support of that application. Whilst she was employed by the employer at the time of the alleged bullying she no longer works for that employer. In this respect she submits that her interests may be different to those of the employer and the respondent employees who still work for that employer. If the employer is give permission to be represented she submits that permission should be extended to her.

Applicant submission

[11] The Applicant opposes the applications for permission.

[12] The Applicant says that the complexity caused by the number of witnesses the employer intends to call is complexity of its own making, that issues associated with the Applicant’s health are contrary to the Commission’s Fair Hearings Practice Note and that volume of material does not necessarily make the matter complex.

[13] The Applicant submits that the employer is not interested in having the matter conducted more efficiently and its actions will not allow the matter to be dealt with more efficiently.

[14] The Applicant submits that the employer should not be granted permission for legal representation because it has provided ‘false and misleading information in their application’ 1 in that it says that its interests and those of the respondent employee are similar while the respondent employee seeking permission indicates that her interests and those of the employer may differ. The employer had the respondent employee’s application for permission prior to filing its own application and should therefore have known that the respondent employee believed her interests differ from that of the employer. In this respect the Applicant says that the employer has provided misleading information.

[15] The Applicant also submits that the respondent employee not be granted permission to be represented because the application is ‘discriminatory towards the Applicant, and false and misleading’ 2 and the granting of permission will make the matter less efficient and more complex.

Consideration

[16] It is well established that in order to exercise the discretion available to the Commission to grant permission to be represented one of the conditions in s.596(2) of the Act must first be met. Such condition having been met does not them make representation automatic but still requires the exercise of discretion on the part of the Commission.

[17] A Full Bench of the Commission confirmed this approach in Emily Oratis v Melbourne Business School 3where it said:

[3] The proper approach to the application of s.596 was discussed as follows by the Federal Court (Flick J) in Warrell v Walton (followed by a Full Bench of this Commission in New South Wales Bar Association v Brett McAuliffe):

“[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”.”

...

[5] It is apparent from the above reasoning that the Commissioner understood and applied the correct approach to s.596 as stated in Warrell v Walton, namely that in order for permission for representation to be granted under the section, it was necessary first to be satisfied that at least one of the three alternative jurisdictional prerequisites in s.596(2) applied, and second to exercise the statutory discretion in favour of the grant of permission. It is further apparent that the Commissioner was satisfied that the jurisdictional prerequisite in s.596(2)(a) applied.

[18] The Applicant in this matter has declined to participate in conciliation in respect of her application. Rather she has insisted that the matter proceed directly to arbitration. Without the benefit of conciliation there has been no opportunity for the Commission to better understand the issues in dispute or for there to be any narrowing of the matters in dispute between the various parties. Because of this a range of matters will be canvassed at the hearing that might otherwise have been put aside. This alone will add complexity to the matter.

[19] I do not accept the submissions of the Applicant that any complexity in this matter, particularly in respect to the number of witnesses the employer may wish to call, is complexity of the employer’s own choosing.

[20] The Applicant, as is her right, has made a complaint alleging bullying and seeking orders from the Commission with respect to stopping the bullying. In making her application she has named a number of individual co-workers as the perpetrators of the bullying actions. She has also complained of actions of managers of the employer in how they then responded when she made a complaint to management of the actions of her co-workers. It is entirely appropriate that these matters be ventilated and the employer and respondent employee’s are able to defend themselves from the claims made by the Applicant. That the employer will seek evidence from those employees named in the application cannot be seen as it ‘choosing’ to make the matter more complex by calling witnesses whose evidence will be irrelevant or unnecessary to its defence of the application.

[21] I note that in her submissions the Applicant has indicated that she also intends to call a witness in the matter.

[22] Further, the Applicant has put her health at issue in her application. The employer cannot be blamed for any complexity in seeking to deal with this as is necessary in the arbitration of the matter. I do not consider the employer raising this issue to be in breach of the Fair Hearings Practice Note.

[23] I do not consider the Applicant’s claims of the employer misleading the Commission as to the coexistence of its interests and those of the respondent employee are relevant to my decision. In any event I do not read any attempt to mislead in the submissions of the employer. It does no more than suggest that the interests may coincide and does not suggest they will always coincide.

[24] I have had the benefit, in considering this matter, in having access to the submissions and material sought to be relied upon by the Applicant (although no witness statement of the witness she indicates she intends to call) and by the employer. I do not consider the material voluminous but, as the Applicant correctly points out, it is not necessarily the volume of material that makes a matter complex.

[25] There are up to ten witnesses to be called in this matter. It is not, as the Applicant suggests, how these are spread over the two days of hearing that reduces or creates complexity but the pulling together of disparate testimony and the process of ensuring that the necessary evidence is placed before the Commission.

[26] Whilst I am not convinced that a lawyer is necessary to ensure the evidence is given, I am mindful of the number of witnesses and named respondent employees (six in total). This does create a level of complexity as if permission is not granted multiple cross examinations of witnesses may occur.

[27] For all of the reasons outlined I am satisfied that there is complexity in the matter and the matter could be dealt with more efficiently if permission was granted.

[28] I am therefore satisfied that a necessary condition in s.596(2) is met.

[29] In deciding whether or not to exercise my discretion to grant permission I am mindful that the presumption in the Act is that parties will normally represent themselves in matters before the Commission. In this case I must balance this against what appears, at least of the material filed so far, a complex case involving a number of ongoing employees of the employer.

[30] The circumstances of this case convince me that I should exercise my discretion and grant permission for the employer to be represented.

[31] Whilst the respondent employee has not yet lodged a notice of representative commencing to act, should she do so permission will be granted to her to be represented.

COMMISSIONER

 1  Applicant’s submission, paragraph 13.

 2   Ibid, para 14.

 3   [2014] FWCFB 3869.

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