Bill Chung v Spa Industries Pty Ltd

[2014] FWC 5141

[2014] FWC 5141

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Bill Chung
v
Spa Industries Pty Ltd
(U2014/5861)

COMMISSIONER RYAN MELBOURNE, 30 JULY 2014

Application for relief from unfair dismissal - representation.

[1] An application for an unfair dismissal remedy was filed by the Applicant on 23 March 2014.

[2] The application is listed for hearing by the Commission on 7 August 2014.

[3] The Respondent through its legal representative, Mr Chao Ni of MST Lawyers, has sought permission from the Commission for the Respondent to be represented by a lawyer at the hearing of the application. The Applicant opposes the grant of permission for the Respondent to be legally represented at the hearing.

[4] Representation by lawyers is dealt with by s.596 of the Act which 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 employersthat 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.

[5] In support of its request for permission to be represented by a lawyer the Respondent contended as follows:

“In addressing the requirements of section 596 of the Fair Work Act 2009, the respondent submits as follows:

1. Granting permission will enable the matter to be dealt with more efficiently, as the respondent's lawyer will assist the Commission to identify relevant legal issues and facts.

2. The Commission is invited to consider that it will most likely, at the arbitration, be required to:

a. resolve a complex issue of dispute between the parties pertaining to the evidence relied upon by the respondent;

b. consider opposing submissions in relation to whether there was a valid reason for the termination of the applicant's employment;

c. consider whether there was procedural unfairness; and

d. determine an appropriate remedy if the respondent is found to have unfairly dismissed the applicant.

3. The respondent does not have a dedicated HR manager who is able to effectively conduct the arbitration.

4. The respondent is not confident that it can adequately address relevant issues during the course of the arbitration and conference without seeking legal advice.”

[6] In opposition to the granting of permission the Applicant contended as follows:

“In response to the respondentʼs claim, the applicant submits as follow:

1. This case is a simple contest of facts without any complex legal issue.

2. The respondentʼs lawyer had so far unable to help with the efficiently of dealing with the matter, as evident in the respondentʼs handling of the Order by the Commission to produce documents.

3. The dispute between the parties pertaining to the evidence relied upon by the respondent is also a simple contest of facts.

4. The respondent is not a small business, and;

5. despite not having a dedicated HR manager, the respondent are being represented, beside the lawyer, by two high ranking company executives (the General Manager and Financial Controller), who have a good knowledge on the facts presented in this case.

6. Being a companyʼs senior executives, the respondentʼs representatives should have the ability to represent themselves effectively.

7. Further to the above point 5 & 6, almost all the evidences relied upon by the applicant, are documents provided by the respondent.

8. The applicant is a 64 years old factory worker from a non-English speaking background, with no knowledge in law, and will struggle with any unnecessary technicalities.

9. The applicantʼs representative is his son-in-law, whose professional qualification is in computer engineering. With English as his second language, and had no professional knowledge in law, and will struggle with any unnecessary technicalities.”

[7] In Warrell v Walton 1, 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.”

[8] Each of the elements of s.596(2) need to be considered.

596(2)(a) it would enable the matter to be dealt with more efficiently, taking into account the complexity of the matter

[9] The Respondent contends that there is “a complex issue of dispute between the parties pertaining to the evidence relied upon by the respondent”.

[10] The nature of the case does not appear to contain any complexity. The Respondent contends that it dismissed the Applicant because of the Applicant’s failure to meet daily production targets. The Applicant sought an Order to Produce to require the Respondent to produce the worksheets of the Applicant and other workers in the Applicant’s team. The essence of the case appears to be a straightforward issue of determining the facts around the work performance of the Applicant.

596(2)(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.

[11] The Respondent contends both that “the respondent does not have a dedicated HR manager who is able to effectively conduct the arbitration” and that “the respondent is not confident that it can adequately address relevant issues during the course of the arbitration and conference without seeking legal advice”.

[12] The issue posed by s.596(2)(b) is whether the Respondent is unable to represent itself effectively. The two words of importance in this provision are “unable” and “effectively”.

[13] The Macquarie Dictionary 6th edition defines “unable” as follows:

unable adj. not able (to do something); lacking ability or power (to do something); weak; impotent.

[14] The Macquarie Dictionary 6th edition defines “effective” as follows:

effective, adj. 1. serving to effect the purpose; producing the intended or expected result: effective measures; effective steps towards peace. 2. actually in effect: the law becomes effective at midnight. 3. producing a striking impression; striking: an effective picture. n. 4. a soldier or sailor fit for duty or active service. 5. the effective total of a military force. -effectively, adv

The Oxford English Dictionary, 2nd edn, Volume III, defines ‘effectively’ as follows:

Effectively, adv

1. As a means of causing or producing

2. a. By a direct exercise of power. b. With regard to the effects. (chiefly Theol.) Obs

3. = In effect a. Actually, in fact (obs) b. Virtually, substantially.

4. So as to produce an effect. Often emphatically: With powerful effect; decisively, completely.

5. In a manner fit for service.

[15] It would appear that the plain meaning of the s.596(2)(b) is whether the Respondent is lacking ability or power to represent itself so as to produce the intended or expected result.

[16] I note that a decision of SDP Richards in CEPU v UGL Resources Pty Ltd (Project Aurora 2) at [16] and [17], and followed by Williams C in Oliveira et or v The Trustee for Clipper Pearls Unit Trust T/a Clipper Pearls P/L3, sets a higher bar for being represented effectively but I am of the view that plain words of s.596(2)(b) do not require representation “that creates a “striking impression”, or which has an “impressive” effect or which is “powerful in effect”.

[17] Setting the bar so high for effective representation is a bar that most experienced industrial advocates and lawyers may find too high.

[18] The first part of any consideration of the criteria in s.596(2)(b) is to have regard to the fact that the representation referred to in s.596(2)(b) is very different from the right any party has to seek legal advice.

[19] The second ground raised by the Respondent was that “the respondent is not confident that it can adequately address relevant issues during the course of the arbitration and conference without seeking legal advice”. A respondent in any matter who has not been granted permission to be represented by a lawyer is still free to seek legal advice both before and during the course of an arbitration or conference. An unrepresented party before the Commission can still have their lawyer present in the hearing room providing advice to them. The effect of a grant or a refusal of permission to be represented by a lawyer determines who is to appear and address the Commission on behalf of a party to proceedings - a lawyer representing a party or the party itself.

[20] It is also relevant to note that a party to proceedings before the Commission is free to use a lawyer to assist in the preparation of witness statements and written submissions without needing to seek permission from the Commission. As long as the witness statements are adopted as evidence by the witness either through being sworn before being filed with the Commission or are adopted as the witnesses evidence when the witness is sworn in during proceedings it does not matter whether the witness had assistance from a lawyer or non lawyer in the preparation of the witness statement. What matters is the evidence of the witness.

[21] Similarly, it does not matter whether a party has the assistance of a lawyer or non lawyer in the preparation of written submissions which are filed with the Commission. Where the party has not been granted permission to be represented by a lawyer, then the party must adopt and own the filed submission. Where the party has been granted permission to be represented by a lawyer then the submission can be filed by the party’s legal representative.

[22] The intended or expected result of representation in the present matter is to present the case that the Respondent wants presented to the Commission. The critical aspects of the case which will be dealt at the hearing will be the oral evidence of the witnesses for the Respondent and the Applicant. This is so because the Commission has already issued directions to both the Applicant and the Respondent to file and serve an outline of submissions and any witness statements.

[23] Where either or both parties are unrepresented procedural fairness may best be served by permitting the parties the opportunity of making final submission in writing after they have had an opportunity of reviewing the transcript of proceedings which contains the oral evidence led in the matter.

[24] The Respondent’s contention that “the respondent does not have a dedicated HR manager who is able to effectively conduct the arbitration” is relevant but it does not necessarily determine whether the Respondent is lacking ability or power to represent itself so as to produce the intended or expected result.

[25] The Applicant contends that “despite not having a dedicated HR manager, the respondent are being represented, beside the lawyer, by two high ranking company executives (the General Manager and Financial Controller), who have a good knowledge on the facts presented in this case” and that “being a companyʼs senior executives, the respondentʼs representatives should have the ability to represent themselves effectively”.

[26] I am satisfied that in the present matter which will turn on a straightforward factual base that the Respondent has the ability to represent itself so as to produce the intended or expected result.

596(2)(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.

[27] The Applicant is 64 years old and of a non English speaking background and has been employed in a relatively low skilled occupation. The Applicant will be represented by his son in law who is tertiary qualified in computer engineering. The Applicant contends that neither the Applicant nor his son in law are knowledgeable in the law.

[28] In such circumstances as the present it would not be unfair to deny the Respondent permission to be represented by a lawyer. Even if the executives or management of the Respondent lack knowledge of the law they do have the requisite knowledge of the facts necessary to be established in this matter.

[29] Having considered each of the elements of s.596(2) I am not satisfied that any of the conditions precedent for the Commission’s exercise of a discretion to grant permission for the Respondent to be represented by a lawyer have been made out.

[30] The request from the Respondent that it be granted permission to be represented by a lawyer is refused.

COMMISSIONER

 1 [2013] FCA 291.

 2   [2012] FWA 2966.

 3   [2014] FWC 4771.

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