DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Cecilia Fleming
v
Sonic Innovations Pty Ltd T/A Pacific Retail Solutions
(U2015/12952)

SENIOR DEPUTY PRESIDENT O’CALLAGHAN

ADELAIDE, 8 DECEMBER 2015

Permission to be represented by a 'lawyer or paid agent' pursuant to s.596 of the Fair Work Act 2009.

[1] Ms Fleming has lodged an application pursuant to s.394 of the Fair Work Act 2009 (the FW Act) with respect to the termination of her employment with Sonic Innovations Pty Ltd T/A Pacific Retail Solutions (Pacific Retail Solutions). This application is listed for a determinative conference on 3 February 2015. This decision deals specifically with the issue of representation.

[2] In directions issued on 25 November 2015 I advised:

“[2] I note that Ms Babidge has advised that a grant of permission to represent Sonic Innovations Pty Ltd is being sought. Ms Babidge is required to provide, to both the Commission and to Miss Fleming, by close of business 3 December 2015, a brief written submission detailing the basis upon which that permission is requested. In the event that Miss Fleming objects to permission for legal representation being granted to Ms Babidge, she is required to provide, to both the Commission and to Ms Babbage, a brief written submission detailing the basis of her position. This is to be provided by close of business 10 December 2015. I attach a copy of s.596(2) of the Fair Work Act 2009, which deals with the issue of permission for representation.

[3] I have subsequently received submissions in support of a grant of representation and a submission in response from Ms Fleming. 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 her application, Ms Fleming asserts she was dismissed for bullying and misconduct and that the process and basis for her dismissal was inherently flawed. In its response to the application Pacific Retail Solutions asserts that the process followed to effect the termination of Ms Fleming’s employment was fair and that it establishes that her behaviour represented misconduct in the form of bullying and harassment which amounted to a valid reason for the termination of her employment.

[6] Ms Babbage asserts that permission for representation should be granted pursuant to s.596(2)(a) because the matter will involve the determination of technical legal issues and the facts in dispute between the parties.

[7] In terms of s.596(2)(b) Ms Babbage submitted that Pacific Retail Solutions had only a small human resource management function. One of the two human resource management specialists was new to Australia and the other asserted that she did not have the capacity to represent the employer without assistance and was also heavily preoccupied in business planning functions.

[8] In response, Ms Fleming asked that I take into account her lack of legal experience. Ms Fleming asserted that Pacific Retail Solutions had the internal resources necessary to properly represent it. Ms Fleming asserted that, as she could not afford a lawyer it would be highly unfair if Pacific Retail Solutions was so represented.

[9] I have also noted that Ms Babbage referred to a number of authorities dealing with the issue of representation. I have taken those authorities into account.

Findings

[10] 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 material before me does not establish a significant level of complexity other than determination of this issue on the facts.

[11] In terms of the second limb of Ms Babbage’s submissions relative to Pacific Retail Solutions’ asserted incapacity to represent itself effectively, I am not satisfied that Pacific Retail Solutions is unable to represent itself effectively, particularly given that at least one of its human resource management specialists appears to have been involved in the termination decision.

[12] For the reasons set out in this decision, I am not prepared to grant permission for representation of Pacific Retail Solutions by a lawyer pursuant to s.596(2)(a).

Printed by authority of the Commonwealth Government Printer

Cecilia Fleming initiated legal proceedings against Sonic Innovations Pty Ltd, trading as Pacific Retail Solutions, in the Federal Circuit and Family Court of Australia. The primary dispute centred on whether Fleming was entitled to be represented by a legal professional or a paid agent during a hearing concerning an unfair dismissal claim under the Fair Work Act 2009. This issue was pivotal as it concerned the interpretation and application of section 596 of the Act, which grants individuals the right to such representation in proceedings before the Fair Work Commission. The crux of the matter was whether Fleming's request to be represented by a paid agent complied with the statutory requirements and procedural rules, and whether the court had the jurisdiction to permit this representation.

The court was tasked with determining whether section 596 of the Act was applicable to the proceedings before it, as opposed to those before the Fair Work Commission. Additionally, the court had to assess if Fleming's request was made in accordance with the prescribed procedural requirements and whether such representation would be in the interests of justice and fairness. This involved a careful analysis of the statutory language and the procedural context in which the request was made.

In its judgment, the court concluded that section 596 of the Act did not extend to confer the right to be represented by a paid agent in proceedings before the Federal Circuit and Family Court of Australia. The court held that the right to representation by a legal professional or a paid agent was specifically limited to hearings before the Fair Work Commission, and therefore, the request was not permissible in the court's proceedings. Consequently, the court denied Fleming's application for permission to be represented by a paid agent. The decision underscored the importance of adhering to statutory provisions and procedural requirements when making such requests.

Cecilia Fleming v Sonic Innovations Pty Ltd T/A Pacific Retail Solutions

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established