Brooke Felici v Ross Maddaluno Estate Agency Pty Ltd T/A Ross Maddaluno Real Estate

[2015] FWC 4667

[2015] FWC 4667

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Brooke Felici
v
Ross Maddaluno Estate Agency Pty Ltd T/A Ross Maddaluno Real Estate
(U2015/913)

Abbey Jacobs
v
Ross Maddaluno Estate Agency Pty Ltd T/A Ross Maddaluno Real Estate
(U2015/914)

COMMISSIONER RYAN MELBOURNE, 9 JULY 2015

Application for relief from unfair dismissal - representation by lawyer.

[1] The Respondent has sought permission to be represented by a lawyer or paid agent in the unfair dismissal hearings listed for 16 July 2015.

[2] Directions were issued by the Commission on 16 and 17 April 2015 requiring the parties to file and serve their respective outline of submissions and any witness statements in relation to the unfair dismissal applications. All parties have through their respective legal representatives filed the material they each wish to rely on.

[3] The Applicants’ legal representative advised the Commission and the Respondent on 4 May 2015 that the Applicants intended to represent themselves at the hearings and that they opposed any application of the Respondent to be represented by a lawyer or paid agent.

[4] The Respondent filed written submissions in support of its application for permission to be represented by a lawyer or paid agent. Mr Maddaluno provided a witness statement which contained the following:

“2. I have no legal training and am unfamiliar with the Commission’s work. I do not believe that I can effectively represent the Agency nor myself if I were denied permission to be represented by a lawyer at the hearing of these matters.”

[5] In reliance on s.596(2)(a) the Respondent appears to contend that the complexity of the matter is associated with the need for the Respondent to lead evidence from witnesses and to cross examine witnesses and that the issues to be determined by the Commission require “legal knowledge of the Act, the NES and the Code”.

[6] The matters for determination before the Commission are straightforward and have been clearly identified by the Respondent in its filed material.

[7] Although the Respondent did not raise any jurisdictional challenge to the application when the Respondent’s lawyer filed its Form F3 the Respondent now raises a jurisdictional objection, namely, that the dismissal was consistent with the Small Business Fair Dismissal Code. The Applicant has filed detailed submissions in relation to this jurisdictional objection as well as detailed witness statements it seeks to rely on.

[8] There is no real complexity in this matter and to the extent that the Respondent relies on s.596(2)(a) there is nothing put by the Respondent which would warrant the Commission exercising its discretion to grant permission to the Respondent to be represented by a lawyer or paid agent.

[9] The Respondent also relies on s.596(2)(b) and in support of its application pursuant to s.596(2)(b) the Respondent relies on the decision of the SDP Richards in CEPU v UGL Resources P/L (Project Aurora). 1

[10] I have previously issued a decision, Chung v Spa Industries P/L, 2 in which I have adopted a different approach to that adopted by the Commission in CEPU v UGL Resources. I intend to follow my earlier decision in Chung v Spa Industries.

[11] It is relevant to note that the decision in CEPU v UGL Resources predates the decision of the Federal Court in Warrell v Walton 3 where Flick J said:

“[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)...”

[12] Recently a Full Bench of the Commission said of s.596(2)(b):

“[18] With respect to fairness pursuant to s.596(2)(b) of the Act, the relevant test is not an assessment of the skills and education of the individual employer representative (Mr Burton), but rather it involves an examination of the resources available to the Respondent as a whole. In this matter, the Respondent Patricks Projects is a large organisation with considerable resources at its disposal. Having regard to the internal legal, human resources and other specialist personnel available to the Respondent, we do not consider that it would be unfair not to allow the Respondent to be legally represented.

[19] Moreover, the onus is on the Respondent to show that it is unable to represent itself. There was no evidence before the Commissioner that the well-resourced employer enterprise, Patrick projects, was unable to represent itself in the substantive proceedings. As such, the findings of the Commissioner were not open to him on the evidence.” 4

[citation omitted]

[13] In the present matter I have had regard to the evidence from Mr Maddaluno:

“2. I have no legal training and am unfamiliar with the Commission’s work. I do not believe that I can effectively represent the Agency nor myself if I were denied permission to be represented by a lawyer at the hearing of these matters.”

[14] However the question of whether the Respondent cannot represent itself effectively cannot be determined solely on the basis of Mr Maddaluno’s evidence as to his lack of legal qualifications and his subjective belief in his own capacity.

[15] The Commission has taken into account the resources available to the Respondent. The Commission accepts that the Respondent does not have in-house lawyers or in-house HR or IR specialists. However the Respondent has access to legal representation which it has effectively used to date to prepare detailed submissions on the matters to be addressed by the Commission, and to prepare detailed witness statements of those persons that the Respondents seeks to rely on in this matter.

[16] To the extent that the Respondent relies on s.596(2)(b) the Commission is not satisfied on the material before the Commission that the Respondent is unable to represent itself effectively at the hearing.

[17] The application by the Respondent for permission to be represented by a lawyer or paid agent is refused.

[18] The Commission has a positive obligation to ensure that procedural fairness is accorded to all parties in proceedings before the Commission and the Commission will ensure that procedural fairness is accorded to both the Applicants and the Respondent in this matter especially where the parties are unrepresented.

[19] The very fact of the application by the Respondent for permission to be represented by a lawyer at the hearing establishes that the Respondent has the ability to have its chosen legal representatives attend the hearing and to assist and advise the Respondent in this matter.

[20] The refusal of permission to be represented by a lawyer or paid agent in the matter before the Commission does not deprive the Respondent of the ability to have its lawyer or paid agent present at the hearing and to seek advice from the lawyer or paid agent during the proceedings.

COMMISSIONER

 1   [2012] FWA 2966.

 2   [2014] FWC 5141.

 3 [2013] FCA 291.

 4   King v Patrick Projects P/L, [2015] FWCFB 2679.

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