Christian Walkerden v Oncall Language Services Pty Ltd

[2023] FWC 1794

[2023] FWC 1794

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Christian Walkerden
v

Oncall Language Services Pty Ltd

(U2023/4118)

COMMISSIONER BISSETT MELBOURNE, 31 JULY 2023

Application for an unfair dismissal remedy – permission to be represented – s.596

1. Mr Christian Walkerden (the Applicant) has made an application to the Commission in which he seeks a remedy for unfair dismissal. Oncall Language Services (the Respondent) is named as the Respondent to the application. It objects to the application of the grounds that it says the Applicant was a contractor and not an employee. Further and in the alternative, it says that the Applicant earned above the high income threshold and is not otherwise eligible to make an application for an unfair dismissal remedy.

1. I have received an application from the Respondent for permission to be represented by a lawyer pursuant to s.596(2) of the Fair Work Act 2009 (FW Act). The application is opposed by the Applicant. Submissions on permission were filed by both parties.

1. At a further mention of the application held on 25 July 2023 I advised the parties that I had decided to grant permission to the Respondent to be represented by a lawyer and that I would issue my reasons in due course. These are my reasons.

1. Section 596 of the FW Act sets out matters associated with representation before the Commission. It states:

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.

1. The Respondent submits, in support of its application, that:

·     There is significant legal complexity in determining the threshold jurisdictional matters (if the Applicant was a contractor or employee and, if the Applicant was an employee, did he earn in excess of the high income threshold). This question has an added layer of complexity with recent decision of the High Court in Workpac Pty Ltd v Rossato[1]. The presence of an experienced legal practitioner conversant with the relevant legal principles in this area will enable the matter to be dealt with more efficiently;

·     The Respondent does not have inhouse legal staff or the necessary expertise to be able to represent itself efficiently. Further, there is no barrier to the Applicant seeking legal advice;

·     It is not materially prejudicial to the Applicant for the Respondent to be represented as the Commission has checks and balances to ensure a fair hearing. Further, given the involvement of the Respondent’s legal representative in all aspects of the matter to date it would be unfair for the Respondent to have to represent itself.

1. The Applicant says that permission should not be granted because:

·     It would create a power imbalance to grant permission to the Respondent when the Applicant does not have such representation and is navigating the process on his own;

·     The Respondent has access to resources, emails, systems, files and staff to aid in its defence when the Applicant has no such access;

·     The issues at hand are not complex and could be understood and addressed by a lay person;

· To grant permission would create a precedent whereby an employer, by virtue of its status as a business, would be entitled to representation. This would be contrary to the FW Act.

1. I have carefully considered the submissions of both parties in relation to this question. I have also taken into account that the matters before the Commission are, at this stage, jurisdictional in nature only. I am, in this case, satisfied that the matter can be dealt with more efficiently if permission is granted. There are a number of relevant legal principles pertinent to the jurisdictional matters before me. The exposition of these by an experienced legal practitioner will ensure all relevant matters are properly considered in determining if the Applicant was a contractor or an employee and, if an employee, what his annual rate of earnings was.

1. In considering the grant of permission it is not my intention that the proceedings should occur in such a way that the Applicant is denied a fair hearing. To the extent the Applicant might be assisted by the Commission, he will be. Further, processes such as further written submissions in response to material not seen before by the Applicant can be put in place, so the Commission can call for the production of documents and witnesses as are necessary to determine the matters raised.

1. I further note:

·     If it is that the issues can be easily understood by a lay person as the Applicant suggests, then there is no unfairness in this respect to him if permission is granted;

·     Whether there is a power imbalance is a relevant consideration but in this case the Applicant has shown himself capable of providing articulate and well-reasoned submissions and that he is familiar with the law with respect to contractors;

·     The relevance of the Respondent having access to ‘emails, systems, files and staff’ is not apparent but, in any event, the Commission has other process (such as orders to produce or attend or that it may make such orders on its own motion if necessary) to counter such matters. Further, whether permission is granted or not the Respondent will have access to this material and people such that it is not altered by the grant of permission;

·     The grant of permission in each case is determined on the circumstances confronting the Commission at that time. The grant of permission in any one case does not entitle any future party to representation in any other case.

1. There is extensive documentation filed by both the Applicant and Respondent. While, for technical reasons I had not been able to review the content of the Applicant’s material at the time I advised that I would grant permission, I note that the volume may support the grant of permission on the grounds that the matter could be dealt with more efficiently if permission was granted.

2. Having taken all matters into account and being satisfied that the requirements of s.596(2)(a) are satisfied I decided to exercise my discretion and grant permission.

COMMISSIONER
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[1] [2021] HCA 23

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