Chanintorn Siri v Urban Orchard Food Pty Ltd

[2019] FWC 610

[2019] FWC 610

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Chanintorn Siri
v
Urban Orchard Food Pty Ltd
(U2018/12555)

COMMISSIONER CAMBRIDGE SYDNEY, 6 FEBRUARY 2019

Termination of employment - representation by lawyers and paid agents.

[1] This Decision involves an application for unfair dismissal remedy which has been made under section 394 of the Fair Work Act 2009 (the Act). The application was made by Chanintorn Siri (the applicant). The respondent employer has been identified to be Urban Orchard Food Pty Ltd ABN: 37 610 526 022 (the employer).

[2] This Decision is made in respect to the discrete question as to whether the Fair Work Commission (the Commission) should grant permission for the applicant to be represented by lawyers or paid agents (the representation question).

[3] The application was filed on 5 December 2018, and it indicated that the date of the applicant’s dismissal was 18 November 2018. Consequently the application was made within the 21 day time limit prescribed by subsection 394 (2) (a) of the Act. The employer filed a response to the application dated 14 December 2018, which indicated that the employer raised a jurisdictional objection to the application on the basis that the employer was a small business and the dismissal of the applicant complied with the Small Business Fair Dismissal Code (the SBFD Code).

[4] The filed documentation indicates that conciliation of the matter occurred on 10 January 2019. However, agreement was not reached to settle the matter, and at a Pre-Hearing Conference held on 21 January 2019, the employer raised objection to the applicant being granted permission to be represented by a lawyer. The substantive matter, including the SBFD Code jurisdictional objection, has been scheduled for Hearing/Conference on 14 March 2019.

[5] The solicitors for the applicant, Legal & Company, and the owner of the employer’s business, Ms G Levette, have each provided their respective documentary material in respect to the representation question, with the material from Ms Levette, being filed on 1 February 2019. The representation question has been determined upon the documentary material which has been filed by the Parties.

Consideration

[6] The question of representation in proceedings before the Commission is governed by s. 596 of the Act which is in the following terms:

“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 employers that 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.”

[7] The legislative intentions underpinning s. 596 of the Act have been the subject of various Decisions of the Commission and of Fair Work Australia. Further, the approach to consideration of the representation question has been examined by way of Judicial Review in the (incorrectly named) Judgment of Warrell v Walton 1 (Warrell) and it is relevant to note, in particular, paragraph 25 of that Judgment.

[8] It is also relevant to note that the operation of s. 596 of the Act has been the subject of more recent examination by a Full Bench Decision in the case of Fitzgerald v Woolworths Limited 2 (Fitzgerald). The Full Bench Decision in Fitzgerald has established, inter alia, particular practical consequences that have application in circumstances where permission for a Party to be represented by lawyers or paid agents is refused, or where lawyers or paid agents undertake a representative role without first obtaining the permission of the Commission.

[9] Subsection 596 (2) of the Act includes three factors which separately or in combination, provide the basis upon which the Commission can grant permission for a lawyer or paid agent to represent a Party in proceedings such as the Hearing/Conference of a claim for unfair dismissal. The three factors which can be identified in paragraphs (a), (b) and (c) of subsection 596 (2), can be paraphrased as: (a) complexity/efficiency; (b) inability/effectively; and (c) fairness.

[10] In this case, the solicitors for the applicant have submitted that there was sound basis for the Commission to grant permission for the applicant to be represented by lawyers. It was submitted, inter alia, that the jurisdictional objection raised by the employer introduced a level of complexity such that the applicant, if unrepresented, would be unable to properly deal with that objection. Further, it was submitted that the Commission would be assisted by legal argument from a qualified legal practitioner in circumstances where the application of the SBFD Code was required.

[11] Conversely, the employer has stated its objection to the applicant being granted permission for legal representation. The employer has asserted that the Act envisaged an intention for Parties to be self-represented, and granting permission would be seen as a departure from the default position. The employer stated that it was an unprofitable small business, and not in a financial position to fund legal representation, and would therefore be represented by the owner of the business, Ms Levette. The employer rejected that the applicant would be unable to effectively represent himself and urged that the Commission refuse permission for legal representation.

Complexity/Efficiency - Subsection 596 (2) (a)

[12] In this instance, the solicitors for the applicant have submitted that the Commission would be assisted by the presentation of legal argument, particularly in respect to the application of the SBFD Code which it was asserted introduced a level of complexity. Conversely, the employer asserted that the issues in dispute were not complex, and the matter involved a straightforward case of misconduct.

[13] Upon examination of the material which has been filed, and a consideration of any contests that may arise from it, it is clear that a level of complexity can be identified from application of the SBFD Code, particularly in terms of circumstances involving application of that part of the SBFD Code that relates to summary dismissal as opposed to the other dismissal provisions. The level of complexity that can arise in respect to the application of the SBFD Code, particularly in circumstances involving a dismissal that was implemented without notice or payment in lieu of notice, can be clearly identified from the Full Bench Decision in the case of Ryman v Thrash Pty Ltd (Thrash) 3.

Inability/Effectively - Subsection 596 (2) (b)

[14] The solicitors for the applicant submitted that the applicant would be unable to represent himself effectively without the assistance of lawyers. It was submitted that the applicant was from a non-English speaking background and he had difficulty reading and writing in English. Further the applicant’s difficulties were exacerbated by the fact that he was currently being treated for pancreatic cancer. The employer submitted that the applicant had been a resident of Australia for over 37 years, and he was fluent in English, and he would be able to represent himself effectively. Therefore, according to the employer, allowing legal representation would only increase cost and inefficiency.

[15] Clearly, the applicant has certain difficulties which would present as potential impediments for him to be able to effectively represent himself particularly in respect to any legal argument about the application of the SBFD Code. In circumstances where the owner of the respondent employer has a law degree, although she does not hold a practising certificate, it would be likely that the unrepresented and untrained applicant would have great difficulty dealing with legal argument surrounding the application of the SBFD Code. In such circumstances, the applicant would be likely to be incapable of making a “striking impression” or be “impressive” or be “powerful in effect”.

Fairness - Subsection 596 (2) (c)

[16] The issue of fairness between the Parties is a matter of recognised significance. In this instance the solicitors for the applicant have made submissions which have raised the question of fairness. In particular, it was submitted that as the applicant was a migrant with minimal education and only a rudimentary grasp of the English language, he would be at a significant disadvantage because his opponent, Ms Levette, was fluent in English, involved in business, and had practised law in the past. On the other hand, Ms Levette submitted that as she was not experienced in the presentation of matters before the Commission, she would be at a disadvantage if permission was granted for an experienced solicitor to represent the applicant.

[17] In this case, having regard for the respective representational positions of the Parties, I have been persuaded that there would be a manifest unfairness created if the applicant was required to represent himself against a qualified lawyer in a matter where certain legal complexities have been identified. Although the employer is a small business without any dedicated personnel who deal with employment related matters, the owner, Ms Levette has a law degree and will be in a position to deal with the legal complexities that are likely to arise particularly in respect to the application of the SBFD Code in circumstances of a dismissal without notice or payment in lieu of notice.

[18] Although the Act envisages that Parties appearing before the Commission would not be represented by lawyers or paid agents, the legal complexity that has been identified in this instance when combined with the clear disadvantage that the applicant would have if he was required to deal with legal argument that would be advanced by a qualified lawyer, has established strong support for permission to be granted on the basis of fairness between the Parties. There would be considerable imbalance created by a circumstance where an applicant, with limited formal education, who was untrained in the law and self-represented, was opposed by a legally qualified member of the staff of the small business that formerly employed him. A representational configuration of this nature, in a matter with identified legal complexity, should be avoided.

[19] In view of the conclusions that I have reached in respect of each of the relevant aspects of subsection 596 (2) of the Act, the permission sought by the applicant to be represented by lawyers or paid agents is granted.

COMMISSIONER

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 1 Warrell v Walton [2013] FCA 291.

 2   Stephen Fitzgerald v Woolworths Limited [2017] FWCFB 2797.

 3   Jeremy Ryman v Thrash Pty Ltd t/a Wisharts Automotive Services [2015] FWCFB 5264.