Christopher Fenech v Ice Design Pty Ltd

[2013] FWC 9169

[2013] FWC 9169

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Christopher Fenech
v
Ice Design Pty Ltd
(U2013/2186)

COMMISSIONER ROBERTS SYDNEY, 25 NOVEMBER 2013

Application for unfair dismissal remedy - whether legal representation should be permitted.

[1] This decision arises from an application lodged on 4 July 2013 by Mr Fenech pursuant to s.394 of the Fair Work Act 2009 (the Act) alleging that he had been unfairly dismissed by Ice Design Pty Ltd (the Company or the Respondent).

[2] The matter is listed for arbitration hearing in Sydney on 2, 3 and 4 December 2013. On or about 11 November 2013, Mr J Murphy of Australian Business Lawyers & Advisors Pty Ltd filed a notice of appearance to represent the Company at the hearing. Mr Murphy also filed written submissions in support of his application. On or about 17 November 2013, Mr Fenech, per Ms M Sahagun, filed a response to Mr Murphy’s application in which permission to appear was opposed.

Legislation

[3] Section 596 of the Act relevantly provides:

“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 FWA (including by making an application or submission to FWA on behalf of the person) by a lawyer or paid agent only with the permission of FWA.

(2) FWA may grant permission for a person to be represented by a lawyer or paid agent in a matter before FWA 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 FWA 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.”

[4] It is clear from the legislation that representation at hearings by a lawyer or paid agent is by no means to be automatically approved by the member hearing a case. The presumption must be against such representation unless the Commission can be persuaded to grant permission. Accordingly, the onus is on the Company to convince me that I should allow it to be represented in arbitration proceedings.

[5] In written submissions, Mr Murphy argued that the Applicant has raised issues on which he intended to rely during the arbitration that go beyond those normally encountered. These include general protections provisions in the Act, the Disability Discrimination Act 1992 (Cth), the Anti- Discrimination Act 1997 (NSW) and workplace bullying. “Given the nature and volume of the matters raised, the case will necessarily involve the examination of questions which are not routinely required for determination in unfair dismissal proceedings.”

[6] The submissions went on to state:

“The matter is likely to involve:

(a) an examination of the legal limits of matters that are commonly considered in unfair dismissal proceedings;

(b) more specifically, whether the scatter gun approach adopted by the Applicant to make allegations outlined above are considerations which the Fair Work Commission may validly consider to be relevant according to the criteria for considering harshness;

(c) a large number of highly disputed facts;

(d) evidence in chief lead by the Applicant constituting 6 witnesses, all of whom will be required by the Respondent for cross-examination; and

(e) evidence in chief being lead by the Respondent, constituting a further 6 witnesses whom may also be required by the Applicant for cross-examination.”

[7] Mr Murphy further argued that the hearing is set down for multiple days and that the Respondent’s Chief Operating Officer (Mr Fielding) and Human Resources Manager (Ms Chrysostomou) would be giving evidence with the Human Resources Manager also functioning as the advocate for the Company if permission for a lawyer to appear is denied.

[8] “Mr Fielding does not have experience in legal or industrial maters before courts and tribunals. In this regard it would be ineffective for Mr Fielding to be required to perform both functions as advocate and witness.”

[9] “Ms Chrysostomou has only been employed by the Respondent for approximately 3 months. Ms Chrysostomou does not have any experience in legal or industrial matters before courts and tribunals.”

[10] Mr Murphy submitted that the Applicant’s representative has previously appeared in unfair dismissal proceedings before the Commission and is a former employee of the Company.

[11] In summary, Mr Murphy argued that permission to appear should be granted on the basis of the complexity of the matter which would render it more efficient for the Company to be legally represented and that it would be unfair not to allow the Company to be so represented because it would otherwise be unable to represent itself effectively and this would create unfairness between the representation allowed to the Company when compared with the representation retained by the Applicant.

[12] Ms Sahagun argued that the Respondent is a large employer with over 800 hundred employees and has dedicated human resource assets within its management structure, employing two human resources personnel. The Company’s Human Resources Manager has been employed in an HR capacity since 2007 by various organisations and can effectively represent the Company. The Chief Operating Officer “has significant educational attainment and extensive management experience…”

[13] “The Applicant’s representative, [Ms Sahagun], was a former employee of the Respondent. She is not legally qualified, has no legal training, and has not worked for a legal firm at all. She has no tertiary qualification in Australia, and English is her second language. Her professional experience has mostly been in Executive Assistant roles and her management experience only commenced during her tenure with the respondent where Ms Sahagun concurrently managed the Human Resources function and the general management of some areas of the respondent’s business. While Ms Sahagun displays a strong passion and interest in employment law, the resources she refers to - for education and information purposes - are equally accessible by the general public eg FWC website, UD Benchbook, case laws, legal drama TV series and other HR-related news, forums and blogs.”

[14] “Ms Sahagun’s only experience as an advocate before the Fair Work Commission was when she represented her own daughter in unfair dismissal proceedings as a support person/relative. That does not make Ms Sahagun an ‘experienced’ advocate. While Ms Sahagun handled numerous HR/employment problems during her tenure with the Respondent, at no time did she represent the Respondent in any unfair dismissal proceedings before the Commission because she ensured the employment problems of the Respondent did not get that far. This is the extent of Ms Sahagun’s experience in workplace relations advocacy. Ms Sahagun has no further experience in appearing in matters before courts or tribunals – professionally or personally.”

[15] “We do not believe that the permission sought would create ‘more’ efficiency as claimed by the respondent, rather it is a matter of convenience and preference for the respondent.” [citation omitted]

[16] “The respondent has already been represented by a lawyer for the purpose of preparing and lodging their written application and their written submissions. Despite managing to secure an extension of time of 8 business days to file their response, the respondent still failed to submit on time as directed by FWC. We believe they already have had sufficient legal assistance in the matter.”

[17] “Ms Sahagun will be both witness and advocate for the Applicant. As the respondent has stated in their submission, they have some doubt whether Ms Sahagun will be in a position to balance her duty as witness, advocate and support person; it therefore emphasises the necessity for fairness, and is all the more reason that Ms Sahagun should not be placed in a situation where she will be up against a lawyer because this will create an imbalance – which may result in the potential absence of a fair and just Hearing.” [citation omitted]

[18] Ms Sahagun also cited various items of case law pertaining to representation by lawyers and I have paid regard to that material.

Conclusion and Finding

[19] “In Warrell v Fair Work Australia, the Federal Court of Australia considered the need for hearings before the FWC to be conducted in a manner that is fair and just. In this decision, His Honour Flick J noted the following;

‘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 which provided in relevant part as follows:

2291. FWA is intended to operate efficiently and informally and, where appropriate, in a non-adversarial manner. Persons dealing with FWA would generally represent themselves. Individuals and companies can be represented by an officer or employee, or a member, officer or employee or an organisation of which they are a member, or a bargaining representative. Similarly, an organisation can be represented by a member, officer or employee of the organisation. In both cases, a person from a relevant peak body can be a representative.

2292. However, in many cases, legal or other professional representation should not be necessary for matters before FWA. Accordingly, cl 596 provides that a person may be represented by a lawyer or paid agent only where FWA grants permission.

...

2296 In granting permission, FWA would have regard to considerations of efficiency and fairness rather than merely the convenience and preference of the parties.’” ([2013] FWC 8680 per Wilson C)

[20] I have closely considered the written arguments put forward by both sides and have been mindful that the onus rests on the Company to positively convince me that I should grant permission for it to be legally represented at the arbitration hearing. I have also paid regard to the material on the Commission’s file in this matter and have come to the conclusion, on balance, that Mr Fenech’s application for relief will be dealt with more efficiently, taking into account the complexity of the matter, if I grant permission to Mr Murphy to appear. This does not appear to be a situation where the Company seeks permission for legal representation merely for convenience. The quality of Ms Sahugan’s written submissions are such that I do not believe that it will be unfair to allow legal representation from the Company in that any manifest injustice may be done to the Applicant by so doing. However, should Mr Fenech decide prior to the hearing that he also wishes to be represented by a lawyer, then I will grant similar permission to his legal representation as I have granted to the Company. The situation where Ms Sahugan may be both advocate and a witness, is not optimal but it is also not unique in my experience.

[21] Therefore, I find that a case is made out for the Company to be legally represented at the forthcoming hearing and permission is granted pursuant to s.596(2)(a) of the Act.

COMMISSIONER

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