Chris Papaioannou v CSL Limited
[2017] FWC 5231
•11 OCTOBER 2017
| [2017] FWC 5231 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Chris Papaioannou
v
CSL Limited
(U2017/7855)
| Commissioner Ryan | MELBOURNE, 11 OCTOBER 2017 |
Application for an unfair dismissal remedy - representation refused.
The Respondent has sought permission to be represented by counsel at the substantive hearing of the unfair dismissal application in this matter. The Applicant is being represented by his union, the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU).
Section 596(2) provides as follows:
“596(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.”
The Respondent in support of permission being granted under s.596(2) relies upon both s.596(2)(a) and (c) but does not rely on s.596(2)(b).
In relation to s.596(2)(a) the Respondent, through its solicitors, Herbert Smith Freehills, contends that:
“Section 596(2)(a)
4. The Respondent submits that legal representation would enable the matter to be dealt with more efficiently, taking into account the complexity of the matter.
5. Section 596(2)(a) requires the Commission to take into account the complexity of the matter, however, the fact that must be satisfied is whether or not legal representation will enable the matter to be dealt with more efficiently.
6. The complexity arises from the conflicting legal arguments being advanced by the parties in these proceedings. Each party's position is based on different Full Bench authorities. On the one hand, the Applicant relies on the case of Balfours v Cooper[2011] FWAFB 8032 (and primarily the comments made by the Commission in the decision below). This was a decision that raises the application of the principles of frustration of contract. On the other hand, the Respondent relies on the majority decision of the Full Bench in Lion Dairy & Drinks Milk Ltd v Norman [2016] FWCFB 4218. The Respondent says that the principles of frustration do not arise in respect of the Applicant's dismissal and it seeks to distinguish Cooper on that basis. The application of the legal principles arising from these decisions is clearly a point of contention between the parties and will ultimately be highly relevant to the resolution of this matter.
7. Counsel is experienced in appearing in matters before the Commission and in conducting such matters in an efficient manner. Further, counsel has drafted the submissions to be relied upon by the Respondent in this matter and has prepared the case having regard to the legal complexities so as to have the matter dealt with as efficiently as possible. Having regard to the complexities (identified above), the Respondent submits that:
(a) the appearance by counsel in the hearing will allow for the real issues to be appropriately addressed and minimise the risk that the parties will be distracted by peripheral issues that may arise during the course of the hearing. Indeed, the Respondent submits that if it is granted permission to be legally represented the hearing is likely to conclude within one hearing day (rather than the 2 days that are presently listed);
(b) the Commission will benefit from the oral submissions of counsel; and
(c) counsel will be better placed to answer any questions that the Commission might have about the legal or factual issues arising during the hearing.
8. On this basis, granting the Respondent permission to be legally represented would enable the matter to be dealt with more efficiently.
9. Further, the Applicant's representative has recognised the benefit of the Respondent being legally represented in this matter. During a telephone conversation with the Applicant's representative on 23 August 2017, the Applicant's representative queried whether the Respondent had engaged legal counsel, noting that the matter was complex and that it would be beneficial to discuss the issues with a lawyer. Attached to this written submission is a copy of an email from Mr Warren Fridell of CSL Limited to Mr Nicholas Grealy of the AMWU, which refers to the substance of this conversation (see Annexure 1).”
[references and annexure removed]
The Applicant and the Respondent have filed their respective witness statements and outline of submissions. The issues raised by both the Applicant and the Respondent do not raise any complex issues of fact or law. The cases advanced by both parties are relatively straightforward. Whilst at the time the directions in this matter were issued it was considered appropriate to set aside 2 days for the hearing of this matter, that time frame was reduced to a single hearing day after both parties had filed their respective material.
It is not uncommon for parties to seek to rely on different authorities to support their respective cases. The mere fact that parties do so does not of itself mean that the matter has any degree of complexity. In the present matter the respective arguments of the parties as to what is the most relevant authority is a matter that can easily be dealt with by the Commission.
There is nothing put by the Respondent that supports its contentions that:
“(a) the appearance by counsel in the hearing will allow for the real issues to be appropriately addressed and minimise the risk that the parties will be distracted by peripheral issues that may arise during the course of the hearing.
(c) counsel will be better placed to answer any questions that the Commission might have about the legal or factual issues arising during the hearing.”
The above two contentions imply that, in the absence of counsel, the Respondent’s representative would not appropriately address the real issues or that the Respondent’s representative may be distracted by peripheral issues that may arise. In the absence of anything other than a written submission from the Respondent’s solicitors I should not draw any implication about the Respondent’s representative.
The Commission is not satisfied that there is any real complexity in this matter simply because the parties rely on different authorities. The Commission is not satisfied that the matter will be dealt with any more efficiently if the Respondent was granted permission to be represented by a lawyer or paid agent.
There is a further matter which needs to be addressed. The opening paragraph of the Respondent’s written submissions in support of its application for permission to be represented is as follows:
“The Respondent seeks permission under s.596(1) of the Fair Work Act 2009 (Cth) (FW Act) to be represented by Patrick Wheelahan of Counsel at the hearing of this matter listed for 26 October 2017 and 27 October 2017.”
References in the above extract from the Respondent’s submissions to “counsel” is clearly intended to refer to Mr Patrick Wheelahan.
However, it would be wrong of the Commission to consider the specific issue raised by s.596(2)(a) by focussing on the Respondent’s desire or intention to be represented by Mr Wheelahan. A grant of permission pursuant to s.596 to be represented cannot be given on the basis that a particular counsel or particular law firm will then represent the party seeking the permission. The Commission must approach the task of considering an application under s.596 on the basis that once permission is granted to a party, the party could choose a good and effective counsel, such as Mr Wheelahan, or the party could choose a lawyer who has never appeared before the Commission and who has little or no experience in Fair Work Act matters. Having said that, knowing who a party intends to use as their legal representative can be taken into account when the Commission is considering whether or not it should exercise its discretion after having been satisfied that one or more of the elements identified in s.596(2) exist. These two points were well made by the Full Bench decision in New South Wales Bar Association v McAuliffe[1] which said:
“[24] We also consider that the Commissioner fell into error in another respect. We have earlier set out the process by which the Commissioner determined the question of the ATO’s representation in the matter before him. What the Commissioner effectively did on 4 and 5 December 2013 was, in a commingled way, to grant the ATO permission to be represented by its solicitor, Mr Noakes, but refuse it permission to be represented by its counsel, Mr Cross. In doing so, what the Commissioner did in substance was to select who, from the ATO’s legal team, would represent it at the hearing. That was not a course authorised by s.596. The power conferred by s.596(2) is simply to “grant permission for a person to be represented by a lawyer or paid agent in a matter”. Nothing in that language suggests that the power extends to the selection of which particular lawyer or paid agent will represent a party applying for permission. In the proceedings below, the duty of the Commissioner was either to grant or refuse permission for the ATO to be represented by a lawyer. It was not within the power conferred on the Commission to choose who that lawyer would be either by reference to the individual identity of the lawyer or by reference to whether the lawyer was a barrister or a solicitor. We do not consider that the power in s.596 was intended to interfere with a party’s right to choose who its legal representative (or paid agent) would be if permission was to be granted
.
[25] We note that in its submissions the ATO went further than this and advanced the proposition that, in the exercise of its power under s.596(2), the Commission could not even have regard to who the lawyer or paid agent representing a party would be if an application for permission was to be granted. This would mean, for example, that in a matter with some minor legal complexity the Commission could not in deciding whether to grant or refuse permission take into account that a party proposed to be represented by senior counsel, or that it could not have regard to the fact that a particular paid agent in relation to whom permission was sought had been the subject of adverse integrity findings in earlier Commission decisions. We doubt the correctness of this submission, given that under s.596(2) and consistent with the analysis in Warrell it remains for the Commission to exercise a general discretion as to the grant of permission once any of the prerequisite criteria in s.596(2) have been satisfied. However, we do not consider it appropriate to determine this issue in a definitive way because it is not necessary for the disposition of this appeal to do so and because there was no proper contradictor in the appeal on that issue.
In relation to s.596(2)(c) the Respondent, through its solicitors, Herbert Smith Freehills, contends that:
“Section 596(2)(c)
10. The Respondent is not seeking to opportunistically exploit the Applicant in seeking to be represented at the hearing. The Respondent recognises that the Commission is intended to operate informally and, where appropriate, in a non-adversarial manner, and intends to run its case in such a manner.
11. In Fisher, Davis, Shaw v Downer ED/ Mining Pty Ltd, Commissioner Cambridge found that no unfairness between the parties would result if the employer was represented by a lawyer in circumstances where the applicants were represented by an experienced industrial advocate from the CFMEU. The same principle applies in this matter, as the Applicant is represented by an industrial advocate from the Australian Manufacturing Workers' Union (AMWU).
12. A similar approach was taken by Commissioner Williams in Notre Dame. In that case, the applicant was an industrial organisation and Commissioner Williams noted that it was the fairness between the industrial organisation and the employer that is relevant for the purpose of considering fairness between the parties. The Commissioner noted:
The applicant is a registered organisation and as such one of its regular activities, and one in which it specialises, is to appear before this Commission in dispute arbitrations and it employs staff to do just that. Notre Dame in contrast is a University and the evidence is that it does not employ staff to regularly appear in arbitrations before the Commission. Consequently I am satisfied that it would be unfair not to allow Notre Dame to be represented by a lawyer taking into account fairness between the Union and Notre Dame in this matter.
13. The reasoning in Notre Dame is apposite to this matter given that the Applicant is represented by a well-established union and has access to, and is using, the union's legal resources.
14. Given the above, there would be an unfair disparity between the parties' abilities to represent themselves should permission be denied. To deprive the Respondent of representation in those circumstances would be to give the Applicant a distinct advantage in the presentation of the case and would be unfair.”
I am very aware that the AMWU has a number of experienced advocates who could possibly be used to represent the Applicant in this matter. Where an Applicant is represented by a union and where the union provides an experienced industrial advocate to run the case for the Applicant, then it may be unfair, having regard to s.596(2)(c), to deny the employer permission to be represented by a lawyer or paid agent. But that will not always be the case. Having a union as the representative of the Applicant does not of itself mean that the union will send its best legally qualified and experienced industrial advocate to represent the Applicant in this matter. The Respondent relies upon the decision in Fisher, Davis, Shaw v Downer ED/ Mining Pty Ltd.[2] In that matter the Commissioner dealt with s.596(2)(c) as follows:
“[21] In this instance, both parties have made submissions which have stressed the question of fairness. The issue of fairness between the person and other persons in the matter has some significance. The employer submitted that unfairness would arise if it were denied an opportunity to be represented by lawyers. The CFMEU has submitted that it would be unfair to permit the employer to be represented by a lawyer.
[22] I am mindful of any imbalance that may be created if a party is granted permission to be represented by lawyer or paid agent. Such an imbalance can provide great potential for the absence of a fair and just Hearing, as was identified by the Federal Court Judgment in the Warrell case.
[23] However, in the circumstances where the applicants have the experienced and competent advocate, Mr Endacott from the CFMEU, I apprehend that no imbalance would be created with lawyers appearing for the other side. Consequently, I consider that there would be no unfairness created by the granting of the permission for legal representation for the employer.”
It is relevant to note that the decision did not find “that 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”. Rather the Commission only decided “that there would be no unfairness created by the granting of the permission for legal representation for the employer”.
I would not be inclined to rely on the Commissioner’s approach to s.596(2)(c). It must also be noted that in that matter the Commissioner addressed the issues raised by s.596(2)(a) and found that permission to be represented by a lawyer or paid agent should be granted to the employer in that matter because of the complexity of the case.
In my considered view the decision in in Fisher, Davis, Shaw v Downer ED/ Mining Pty Ltd does not support the Respondent’ case in relation to s.596(2)(c).
The Respondent also relies on the decision in NTEU v The University of Notre Dame Australia,[3] and I have had regard to that decision and the consideration given by the Commissioner in that matter to the competing contentions of the parties and to the nature of the in-house legal personnel employed by the University and to the 2 persons who were identified by the NTEU as being “experienced employment relations practitioners”. The Commissioner decided to grant permission for the University to be represented on the basis of each of ss.596(2)(a), (b) and (c). In relation to s.596(2)(c) the Commissioner concluded that:
“The applicant is a registered organisation and as such one of its regular activities, and one in which it specialises, is to appear before this Commission in dispute arbitrations and it employs staff to do just that. Notre Dame in contrast is a University and the evidence is that it does not employ staff to regularly appear in arbitrations before the Commission. Consequently I am satisfied that it would be unfair not to allow Notre Dame to be represented by a lawyer taking into account fairness between the Union and Notre Dame in this matter.”
The present matter can be distinguished from the facts and circumstances in Notre Dame.
The Respondent’s material filed in relation to the substantive matter identifies that Mr Warren Fridell, the Respondent’s Senior Manager Workplace Relations was involved in aspects of the matter. The Commission’s file in this matter also identifies that Mr Fridell has a continuing involvement in this matter. Mr Fridell is also involved in another matter before the Commission as currently constituted, C2017/4235, a section 739 matter involving the NUW and CSL Ltd. Mr Fridell is more than sufficiently qualified and experienced in advocacy to represent the Respondent.
It is not surprising that the Respondent in seeking permission to be represented does not rely on s.596(2)(b). The Respondent, having Mr Fridell as its Senior Manager Workplace Relations, is able to represent itself effectively in this matter.
In the context of s.596(2)(c) there is nothing to suggest that it would be unfair not to allow the Respondent to be represented taking into account fairness between the Applicant (represented by the AMWU) and the Respondent when the Respondent has, as an employee, a person of Mr Fridell’s qualifications and experience.
I am not satisfied, having regard to the matters identified in s.596(2) that the Respondent should be granted permission to be represented by a lawyer or paid agent. The application for permission is refused.
COMMISSIONER
[1] [2014] FWCFB 1663.
[2] [2014] FWC 2159 at [23].
[3] [2014] FWC 2409.
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