Bianca Middleton

[2017] FWC 272

[2017] FWC 272

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Bianca Middleton
(U2016/13368)

Shaun Middleton
(U2016/13371)

v
Build West Pty Ltd ATF The Leverett Trading Trust T/A Build West

SENIOR DEPUTY PRESIDENT O’CALLAGHAN ADELAIDE, 13 JANUARY 2017

Application for relief from unfair dismissal - permission to be represented by a ‘lawyer or paid agent’ pursuant to s.596 of the Fair Work Act 2009.

[1] Ms and Mr Middleton have lodged applications pursuant to s.394 of the Fair Work Act 2009 (the FW Act) in which they assert that the termination of their employment with Build West Pty Ltd ATF The Leverett Trading Trust T/A Build West (Build West) was unfair. This application is listed for a determinative conference on 28 February 2016. This decision deals specifically with the issue of representation.

[2] In directions issued on 20 December 2016 I advised:

“[2] In the event that either party to this matter seeks to be represented by a lawyer or paid agent, a brief submission detailing the basis for that request is to be provided to the Commission and to the other party by close of business 4 January 2017. If the other party opposes any such request, a brief submission setting out the basis for that opposition is to be provided to the Commission and to the first party by close of business 11 January 2017. In that event, and in that event only, a decision dealing with the disputed issue of representation will be provided to the parties as soon as practicable after 11 January 2017. The issue of representation is dealt with in s.596(2) of the Fair Work Act 2009 (the FW Act). A copy of this section is attached.”

[3] I have subsequently received submissions from Ms and Mr Middleton seeking a grant of representation and a submission in response from Build West opposing that request. In considering this issue I have taken into account both the application and the Employer’s Response to that application (the Form F3).

[4] Section 596(2) states:

“596 Representation by lawyers and paid agents

….

(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.”

[5] In their applications, Ms and Mr Middleton assert that termination of their employment was harsh, unjust and unreasonable. Further, the extent that these terminations were represented as redundancies, appears to be disputed, particularly in Mr Middleton’s case. The applicants dispute the extent to which the required consultation about possible redundancies occurred prior to the termination of their employment A significant component of both applications appears to relate to a claim for entitlements. In its response to the application made by Ms Middleton, Build West asserts that Ms Middleton was not an employee, that she had left Build West over a month before she asserts that she was dismissed, and that, in the alternative, any termination of her employment was a case of genuine redundancy and that, as Build West was a small business, her dismissal was consistent with the Small Business Fair Dismissal Code (the Code). In its response to the application made by Mr Middleton, Build West asserts that the termination of his employment was a case of genuine redundancy and that as it was a small business, his dismissal was consistent with the Code.

[6] Ms and Mr Middleton seek that permission for representation should be granted pursuant to s.596(2) on the following basis:

“1. It will allow the matter to be dealt with more efficiently, given the technical issues surrounding jurisdiction that have been asserted by the Respondent, which can be addressed more succinctly by solicitors who practice in this area of law;

2. It would be unfair not to allow the Applicants to be represented given that they have no knowledge of the legal complexities surrounding jurisdictional issues, through no fault of their own; and

3. The Applicants do not object to the Respondent being legally represented in any event.” 1

[7] In response, Build West stated:

“1. It is not necessary for the Applicant to have representation in order to fairly hear and examine the issues. We submit that there is not a high degree of complexity surrounding jurisdiction and the like, per s596 ss2.

2. The Applicants are former directors of a building company and have a good ability to discuss legal matters with both of them having several years directorship and experience with these kinds of Human Resource type matters. Further 10 years each of experience employed at the company, much of the time at a high level. They are experienced enough to deal with these matters.

3. The Respondent company has absolutely no cash to pay solicitors and in fact has a number of large debts and would be strongly disadvantaged if the Applicant was able to have legal representation. I am working on a voluntary basis and am not a solicitor.

4. The Respondent company strongly rejects to the Applicants being represented.” 2

Findings

[8] I have considered the extent to which a grant of representation should be issued on the basis that it would enable the matter to be dealt with more efficiently, because of its complexity. I am not satisfied that this is the case. The principles relative to the determination of whether a person is an employee are now well-established. In this case, those principles will need to be applied to the facts. The question of whether the termination of Ms and Mr Middleton’s employment met the requirements of a genuine redundancy which are specified in s.389 of the FW Act, is a matter of fact on well-established principles. Thirdly, to the extent that the Code is relied upon, the intention of the legislation is to make this issue as simple and as straightforward as possible. The material before me does not establish a significant level of complexity other than determination of this issue on the facts. Consequently, the complexity of the matter does not represent a basis for a grant of permission.

[9] In terms of the second limb of Ms and Mr Middleton’s submissions, made on the basis that they have no knowledge of the legal complexities surrounding jurisdictional issues, I am not satisfied that, in the particular circumstances of this matter, Ms and Mr Middleton are unable to effectively represent themselves so as to provide evidence about the facts of their employment circumstances.

[10] To the extent that Ms and Mr Middleton rely on s.596(2)(c) on the basis that they do not object to Build West being legally represented, the absence of any such objection cannot form the basis for a grant of permission. Simply put, Build West is not seeking to be represented by a lawyer or paid agent and there is no contention that Mr Gray of Build West has qualifications as a lawyer.

[11] For the reasons set out in this decision, I am not prepared to grant permission for representation of Ms and Mr Middleton by a lawyer pursuant to s.596(2).

[12] One final observation is appropriate in this matter. To the extent that Ms and Mr Middleton are pursuing this application in order to achieve some form of order for the payment of entitlements they consider due to them, they may wish to give consideration to a recovery action, either initiated directly or through the Fair Work Ombudsman as an alternative to pursuing this application. That, however, is entirely a matter for Ms and Mr Middleton to consider.

 1   Submission on behalf of applicant, via email, dated 3 January 2017.

 2   Submission of respondent, via email, dated 11 January 2017

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