Catherine Funtulis v John Deere Limited (Australia/New Zealand)

[2021] FWC 6598

[2021] FWC 6598

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Catherine Funtulis
v
John Deere Limited (Australia/New Zealand)
(U2021/9785)

COMMISSIONER HUNT BRISBANE, 13 DECEMBER 2021

Application for unfair dismissal remedy – objection by applicant to representation of respondent employer by a lawyer

[1] This matter concerns an application made by John Deere Limited (Australia/New Zealand) (the substantive Respondent) for leave in relation to the appearance of a lawyer at an unfair dismissal telephone conference before me on 14 December 2021, and thereafter in a hearing before me on 31 January 2022, if the unfair dismissal application is not settled.

[2] The application is made pursuant to s.596 of the Fair Work Act 2009 (the Act). Mr Andrew Wydmanski, Senior Associate of Allens is representing the Respondent. Mrs Catherine Funtulis, the Applicant, objects to the Respondent being granted leave to be represented by a lawyer. Mrs Funtulis is represented by her husband, Mr John Funtulis.

[3] The parties were directed to file submissions addressing the issues for consideration by the Fair Work Commission (the Commission) in s.596 of the Act.

[4] Section 596 of the Act 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.”

[5] With respect to s.596(2)(a) of the Act, the Respondent submits:

(a) A jurisdictional objection to the claim has been made on the basis that Mrs Funtulis’ dismissal involved a genuine redundancy. Jurisdictional arguments are generally recognized as complex. 1 In CEPU v UGL Resources Pty Ltd the Commission recognised that legal representation was reasonable where the employer sought to agitate a jurisdictional issue as such issues ‘by their nature are prospectively complex in their own right, and/or else may require a degree of familiarity with court and tribunal jurisprudence or authorities’.2

(b) The Respondent expects it will be required to call three witnesses. There is a substantial body of evidence from witnesses and documentary evidence that will need to be analysed by the Commission to determine whether to uphold the jurisdictional objection. Mr Wydmanski, who is an experienced advocate in the Commission, would also be able to assist the Commission to assess and understand the competing factual assertions of Mrs Funtulis and the Respondent and to deal with this matter efficiently.

(c) The inclusion of bullying, harassment, breach of confidentiality and coercion allegations in Mrs Funtulis’ application highlights that the parties are in dispute as to what matters are relevant to the substantive application. Relevance is a technical legal area and reference to legal authority will be required. Legal representation will ensure that the examination is confined to relevant matters and appropriately tests the areas in dispute. This will ultimately reduce the time it will take the Commission to deal with the matter and reduce the risk of important facts not being brought before the Commission and time wasted on irrelevant material. The Respondent submits that it will assist the Commission in streamlining matters and having the proceedings focused on the relevant matters in issue if permission for legal representation is granted.

(d) The dispute between the parties on the facts may necessitate considerable cross-examination of each witness. This process would be more effectively conducted by Mr Wydmanski who has advocacy experience in the Commission and is aware of the expectations and requirements of cross-examiners. In cases requiring extensive cross-examination, the involvement of lawyers improves the efficiency of hearings and justifies the granting of permission to appear under section 596 of the Act. 3

(e) The directions handed down in this matter require the Respondent to file a written statement of evidence for each witness to be called, an outline of submissions and copies of any documents that will be relied upon by 23 December 2021 and to prepare for and attend the hearing set down for 31 January 2022. If the Respondent is granted permission to be represented by a lawyer, Mr Wydmanski will be able to ensure these deadlines are met and that the material filed is sufficiently considered and targeted at the matters in issue. The Commission has previously recognised that the location, competing work priorities and other obligations of internal representatives are valid considerations in this context. 4

(f) The hearing would require more than the one day currently allotted to it, if both

parties were unrepresented. To grant this application would, therefore, be consistent with the Commission’s objective of achieving the fair, just and quick disposal of the matters before it.

[6] With respect to s.596(2)(b) of the Act, the Respondent submits that effective representation involves representation which creates a ‘striking impression’ or which has an ‘impressive effect’ or which is ‘powerful in effect’. 5 It submits:

(a) The Respondent has the benefit of only one in-house lawyer in Australia, Mr Jamie Kerr. Mr Kerr does not have material employment law expertise or industrial experience. He has not participated in any contested proceedings in a court or tribunal and has limited employment law experience.

(b) Mr Kerr is employed by John Deere Financial Limited, not the Respondent, and is required to provide legal support on numerous matters for the broader John Deere group in Australia and New Zealand. Many of these matters have equally demanding timeframes and are business critical. He is also the Company Secretary and a member of the leadership team of John Deere Financial Limited, which places additional demands on his time beyond his duties as in-house lawyer.

(c) Given his substantial workload, Mr Kerr would not have the time needed to prepare the Respondent’s case properly and present it before the Commission, in addition to performing his usual duties. Consequently, as a result of the volume and complexities of his responsibilities, Mr Kerr is heavily dependent on the support of external legal representation – particularly to conduct and advocate in contentious proceedings on the Respondent’s behalf.

(d) The Respondent also has a small in-country Human Resources team, which consists of Ms Camilla Kelly, Head of People & Culture, Ms Jessica Hart, Human Resources Manager; and a number of specialist positions such as payroll, recruitment and operations. However, this team focuses on the management of employees, rather than post-employment disputes. They are responsible for providing human resources support for a number of John Deere businesses across Australia and New Zealand, including the Respondent, John Deere Financial Limited and Waratah NZ Limited.

(e) Only Ms Kelly has any experience in handling disputed matters before the Commission and she has extremely limited experience in relation to any matters which are not settled at the conciliation stage. Ms Kelly is not a solicitor and does not have any legal training. Ms Kelly is also a member of the Respondent’s Executive Leadership Team and responsible for numerous operational initiatives (including coordination of the Respondent’s ongoing response to the impact of COVID-19 on its operations) which mean that her ability to manage this dispute is extremely limited. Ms Kelly will also be on annual leave in Sweden for several weeks over the Christmas break. Furthermore, Ms Kelly is likely to be a witness in these proceedings.

[7] Mr Funtulis, on behalf of his wife made the following submissions:

(a) The Respondent made a late request for legal representation by initially not being represented when the Form F3 was completed.

(b) The Respondent is a large company and has trained, experienced managers and HR employees and legal consultants (internal and external) at its disposal at all times.

(c) The complexity is low and HR representatives should be able to adequately represent the Respondent as it is a ‘clear case of an unfair dismissal’.

(d) Mrs Funtulis’ job is still required and the Respondent did not meet its obligations to redeploy her.

(e) It would be unfair to allow the Respondent to be legally represented as the Respondent already has the ‘upper hand’ by having legal consultants at its disposal.

(f) Ms Kelly or another HR person or manager should be more than capable to conduct the advocacy at the hearing. It is asserted that Ms Kelly is not a primary witness; however, how Mrs Funtulis asserts this is not made out.

(g) It is not fair and just for one party to be represented by a lawyer when the other is not.

[8] In correspondence sent by Mr Funtulis on 12 November 2021 to Ms Kelly, copying in 13 employees of the Respondent, the following was asserted:

“….With regards to your responses on Form F3, I find them contradictory in a number of instances and vague so it is without saying that I disagree with most of them!

Although I would had loved to take the time to discredit each and every one of them, I’m sure I will have plenty of opportunities at the hearing. So for now your responses are unworthy of my time.

It has come to my attention however that has been further new untrue statements in these responses. So I can only hope that your integrity is much higher when you are under oath!! I would also like to take this opportunity to ask for yourself as HR to have a word with Jamie Maione as I believe that confidentiality is a big issue within his team and ask him to place a stop to spreading untrue rumours by him and lets say his team leaders (so as I don’t mention any names) about Catherine. We do not want for Catherine to go down the defamation of character charges.

Camilla, this is a clear cut case of an unfair dismissal and there is no question about it. I have been a Director and CEO in a number of companies before so it is very disappointing to see that John Deere management believe;

- That they can do whatever they like and mistreat valuable and loyal employees of years, to the point where are treated like criminals.

- Try and discredit them when are complaining for fair work and retaliate ageist [sic] them for whistle blowing.

- Ignore and diminish complaints that are forward to upper management when apparently there is an open door policy culture, that is obviously when it suits….”

Consideration

[9] The decision of Flick J in Warrell v Walton 6 addresses the obligation to strike a balance between the objective of an informal determination process with equity and efficiency considerations depending on the circumstances of a particular matter:

“[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)...”

[10] The decision to allow a party to be represented in a matter is discretionary, it is not automatic. The discretion afforded to the Commission will be exercised on the facts and circumstances of the particular case against the legislative tests. 7 

[11] In Wellparks Holdings Pty Ltd t/as ERGT Australia v Mr Kevin Govender, 8 a Full Bench of the Commission said the following:

“[51] We reject the proposition that jurisdictional issues are ‘by their nature’ complex. Some jurisdictional issues may properly be characterised as complex and others not. A case by case assessment is required, rather than the adoption of some general decision rule which assumes that all matters in which a jurisdictional issue arises are ‘complex in their own right’ and that ‘representation by a lawyer would be a reasonable course’. To the extent that Senior Deputy President Richards is to be understood as expressing a contrary view, we respectfully disagree.”

[12] The Full Bench also stated:

“[48] The assessment of whether permission should be granted under section 596 involves a two-step process. The first step is to consider whether one or more of the criteria in s 596(2) is satisfied. The consideration required by this first step ‘involves the making of an evaluative judgment akin to the exercise of a discretion’. It is only where the first step is satisfied that the second step arises, which involves a consideration as to whether in all of the circumstances the discretion should be exercised in favour of the party seeking permission. The satisfaction of any of the requirements set forth in s 596(2)(a) to (c) does not of itself dictate that the discretion is automatically to be exercised in favour of granting permission.”

[13] The Respondent’s submission regarding the granting of permission and the preparation of written materials for the hearing is misguided. The Respondent does not need the permission of the Commission to engage a legal representative to prepare its written material. It is free to do so as it pleases.

[14] I have concluded that permission for the Respondent to be represented by a lawyer will enable the matter to be dealt with more efficiently taking into account the complexity of the matter. This is because there are matters being raised by Mrs Funtulis around bullying, harassment, breach of confidentiality and coercion. Cross-examination of witnesses will occur and given the tone of Mr Funtulis’ email of 12 November 2021, I am satisfied it is best if the witnesses, whether they include Ms Kelly or not, have a legally qualified representative who may make appropriate objections if the questions put are not relevant.

[15] I am satisfied that the criteria in s.596(2)(a) of the Act has been met, after evaluating the complexity of the matter and weighing up who could more efficiently deal with the evidence, cross-examination and submissions before the Commission.

[16] With respect to the consideration in s.596(2)(b), I am satisfied that while the Respondent is a relatively large employer with one in-house lawyer, Mr Kerr does not have the relevant experience to effectively represent the Respondent. The other HR professionals who could have represented the Respondent appear to be involved in the application and at least some of them are likely to give evidence and be cross-examined. Having regard to the communication sent by Mr Funtulis, I consider it would not be appropriate for one of the HR representatives, in this instance, to be the representative and a potential witness. In these circumstances, I consider it would be unfair not to allow the Respondent to be represented because the Respondent is unable to represent itself effectively.

[17] I am satisfied that the criteria in s.596(2)(b) of the Act has been met.

[18] The assertion made by Mr Funtulis, on behalf of Mrs Funtulis, that it is not fair and just for one party to be represented by a lawyer when the other is not is rejected. Such a consideration is not within s.596(2) of the Act, and is not something the Commission must take into consideration when determining if leave should be granted. To do so would be an error.

[19] For the reasons set out above, I exercise my discretion under s.596(2)(a) and (b) of the Act to grant permission for the Respondent to be represented by a lawyer. The Commission will, of course, afford to Mrs Funtulis all necessary and appropriate assistance at the hearing to ensure procedural fairness to her. There will be no disadvantage to Mrs Funtulis, and if at any time Mr or Mrs Funtulis have questions relevant to issues or processes before the Commission, this will be accommodated.

[20] Further, the parties will be invited at the commencement of the hearing to address the Commission relevant to whether the hearing should be conducted as a determinative conference, or a hearing. Mrs Funtulis may consider a determinative conference to be a less adversarial process. The views of the parties will be considered on this issue.

COMMISSIONER

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1 Caruana v Shace Toop Trading Trust T/A Toop & Toop Real Estate [2018] FWC 2231; O'Grady v Royal Flying Doctor Service of Australia [2010] FWA 1143 at [29].

2CEPU v UGL Resources Pty Ltd [2012] FWA 2966 at [23].

3   See, for example, the decision of Lewin C in Nain v Southern Cross Care [2014] FWC 4675.

 4 Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v UGL Resources Pty Limited (Project Aurora) [2012] FWA 2966 at [18].

5CEPU v UGL Resources Pty Ltd [2012] FWA 2966 at [11] – [17].

6 [2013] FCA 291.

7Rodgers v Hunter Valley Earthmoving Company Pty Ltd [2009] FWA 572.

 8  [2021] FWCFB 268.