Damiano Banda v Ocn Services

[2016] FWC 6969

[2016] FWC 6969

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Damiano Banda
v
OCN Services
(U2016/10052)

SENIOR DEPUTY PRESIDENT O’CALLAGHAN ADELAIDE, 29 SEPTEMBER 2016

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

[1] Mr Banda has made an application pursuant to s.394 of the Fair Work Act 2009 (the FW Act) in relation to the termination of his employment with OCN Services (OCN). This application is listed for a determinative conference in October 2016 to address a jurisdictional objection to the application, made on the basis that Mr Banda had not completed the requisite minimum employment period. This decision deals specifically with a request made by Mr Selig of the Workplace Advisory Group for a grant of permission to represent OCN in this arbitration.

[2] The issue of representation was considered in a directions conference on 15 September 2016. The directions issued on that day required Mr Selig to file in the Fair Work Commission (the FWC) and serve on Mr Banda, by close of business 23 September 2016, a brief statement setting out the basis upon which permission was requested. Mr Banda was directed to provide a brief statement setting out his position in response, by close of business 30 September 2015.

[3] The OCN material was received on 21 September 2016 and, on 27 September 2016, Mr Banda provided a submission in which he opposed the permission requested by Mr Selig.

[4] Representation of a party in the FWC by a lawyer or paid agent generally requires a grant of permission to this effect. Section 596 relevantly 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.

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] I have considered the request for a grant of permission for representation of OCN by the Workplace Advisory Group on the basis of this statutory provision. In doing so I have taken into account the submission made by Mr Selig and a statement provided by Mr Itaoui, the owner and Managing Director of OCN. I have also taken into account the submission made by Mr Banda.

[6] The Workplace Advisory Group submission is that the minimum employment period objection raised by OCN requires consideration of the concept of a “transferring employee” under s.384(2)(b) and issues associated with whether entities are “associated entities” within the meaning of s.50AAA of the Corporations Act 2001 such that the matter should be regarded as being of sufficient complexity so that it will be more efficiently dealt with if OCN is represented by a paid agent. Further, that OCN would otherwise need to be represented by Mr Itaoui, as its owner and Managing Director, who does not have the requisite skill or experience and is also likely to be involved in the provision of evidence relative to the minimum employment period issue. Mr Selig asserts that his involvement in the matter would contribute to its efficient conduct in these circumstances. In terms of s.596(2)(b), the Workplace Advisory Group assert that OCN has neither the expertise nor the experience so as to be able to effectively represent itself in this matter and that this difficulty is compounded by the extent to which Mr Itaoui will be required to give evidence. With respect to s.596(2)(c) the Workplace Advisory Group asserts that issues of fairness between the parties support a grant of permission in this situation.

[7] Mr Banda’s submission is brief and is perhaps best set out in full in the following terms:

“… I strongly reject representation from the respondent because of the following reasons; I brought this issue to the commission your honour because since receiving my dismissal letter I was never accorded the chance to present my concerns to the Director of my former employers despite numerous attempts. I therefore was confident that if I bring the issue to the commission, with your powers my employers will be compelled to come to the round table and hear my grievances.

It is not my wish to engage with my former employers in a protracted legal battle as I do not have the capacity of such. You may wish to know your honour that I had to apply for a waiver on the application fee for my application to be processed which shows how financially incapacitated I am. I am confident that with your mediation we, both parties without the need for representation will come to an understanding therefore avoiding unnecessary costs.

The other reason your honour is that having representation from one side it will accord an unfair advantage for the other party as I cannot understand legal arguments.”

[8] The determinative conference listed for 26 October 2016 will deal specifically with the minimum employment period issue identified by OCN in its response to the application (the Employer’s Response Form F3). Only limited information about this objection to the application is available to me at this time. However, the provisions of s.384 are relatively straightforward. That section states:

“384 Period of employment

(1) An employee’s period of employment with an employer at a particular time is the period of continuous service the employee has completed with the employer at that time as an employee.

(2) However:

(a) a period of service as a casual employee does not count towards the employee’s period of employment unless:

(i) the employment as a casual employee was on a regular and systematic basis; and

(ii) during the period of service as a casual employee, the employee had a reasonable expectation of continuing employment by the employer on a regular and systematic basis; and

(b) if:

(i) the employee is a transferring employee in relation to a transfer of business from an old employer to a new employer; and

(ii) the old employer and the new employer are not associated entities when the employee becomes employed by the new employer; and

(iii) the new employer informed the employee in writing before the new employment started that a period of service with the old employer would not be recognised;

the period of service with the old employer does not count towards the employee’s period of employment with the new employer.”

[9] Jurisdictional issues commonly raise complex issues where representation contributes to the efficient conduct of the matter. However, in this instance, I am not satisfied that the minimum employment issue raises any significant element of complexity that cannot be properly addressed by Mr Selig well before the determinative conference on 26 October 2016. In terms of s.394, the issue of whether Mr Banda was a transferring employee is generally a question of fact about which Mr Selig can advise OCN. Further, the extent to which Mr Banda previously worked for an employer which was or was not an associated entity is substantially a matter of fact which I am not satisfied is likely to significantly impact on the jurisdictional objection. A far more likely consideration goes to the extent to which OCN provided written advice to Mr Banda to specify that his service with the former employer would not be recognised. Again, the information before me indicates that this issue is a matter which I would expect to be resolved prior to the determinative conference. If the research which should be undertaken prior to the determinative conference indicates that the objection will fail, I expect the OCN objection to be withdrawn.

[10] Consequently, I am not satisfied that the likely complexity of the issues to be addressed in this determinative conference favours a grant of permission on the basis that it would enable the matter to be dealt with more efficiently. In simple terms, I expect that Mr Selig’s involvement will largely allow the chances of the jurisdictional objection being upheld to be objectively assessed by OCN well before 26 October 2016. If the factors in s.384 are properly considered prior to the determinative conference, I see little utility in OCN being represented. Further, notwithstanding Mr Itaoiu’s active involvement in the matter and lack of experience in the Commission, Mr Selig’s involvement in the proper preparation of the matter should enable the straightforward provision of information to enable a conclusion about ss.383 and 384 to be reached. Consequently, I am not satisfied that representation of OCN by a lawyer in the determinative conference would enable the matter to be dealt with more efficiently.

[11] In terms of s.596(2)(b), it seems to me that the minimum employment issue is so capable of being considered prior to the determinative conference on 26 October 2016 that I am not satisfied that Mr Itaoui would be unable to represent OCN effectively.

[12] Further, and pursuant to s.596(2)(c), the information before me confirms that Mr Banda is not a lawyer and is not represented in this matter. Consequently I am not satisfied that it would be unfair not to allow OCN to be represented taking into account fairness between the parties in this matter.

[13] Accordingly, I am not satisfied that the prerequisite requirements of s.596(2) have been met in this instance such that a grant of permission for OCN to be represented by a paid agent in this matter is appropriate. The request for a grant of permission is refused on this basis.

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