Daniel Jung v PNC Legal Pty Ltd T/A Park & Co Lawyers

[2021] FWC 5454

[2021] FWC 5454

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Daniel Jung
v
PNC Legal Pty Ltd T/A Park & Co Lawyers
(U2021/5608)

COMMISSIONER SIMPSON BRISBANE, 1 SEPTEMBER 2021

Application by Respondent for legal representation

[1] This matter involves an application brought under s.394 of the Fair Work Act 2009 (the Act) by Mr Daniel Jung (the Applicant) who alleges the termination of his employment with PNC Legal Pty Ltd T/A Park & Co Lawyers (the Respondent) was unfair.

[2] The matter has been listed for hearing of the substantive matter on 6 and 7 September 2021.

[3] On 11 August 2021 the Respondent filed a Form F53 Notice that a person: (a) has a lawyer or paid agent; or (b) will seek permission for lawyer or paid agent to participate in a conference or hearing. The Respondent also filed submissions requesting that leave be granted for it to be legally represented.

[4] On 13 August 2021 the Applicant filed submissions in response objecting to legal representation of the Respondent.

[5] s596 of the Act reads as follows:

“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.”

Efficiency

[6] The Respondent submitted the Commission would be capable of more efficiently dealing with the matter with legal representatives. It submitted that given some peculiar and some complex features of the present case, the Commission would likely benefit from legal representatives in the efficient dealing with the present matter.

[7] The Respondent submitted that in relation to the peculiar and complex features of the proceeding, the Applicant’s own case is somewhat broad ranging, including:

a. The applicability of a police investigation to the matters in issue;

b. Questions of contractual repudiation and its interplay with pre-termination conduct;

c. The application of solicitors’ fiduciary obligations of confidentiality (and the scope of such a duty as it relates to former employers);

d. The assessment of the application, and scope, of any potential breach of the Australian Solicitors Conduct Rule (for both the Applicant and the Respondent);

e. Interpretation of policy documents as contractual terms;

f. Admissibility of hearsay, speculation and other oral evidence at hearing which are the subject of objections; and

g. The scope of serious misconduct at law.

[8] The Respondent submitted that some of these issues, perhaps with the exception of (g), are outside the ordinary scope of the application of Section 387 of the Act. It submitted they have, for a large part, been enlivened by the Applicant in his discourse with the Commission to date.

[9] The Respondent submitted that in relation to the efficiency of the proceeding, there are questions of professional misconduct under the Australian Solicitor Conduct Rules. It submitted that in the hearing, it seems, the Applicant intends to explore the applicability of the conduct rules in cross-examination. It is likely, given the nature of the Applicant’s work, he too will be questioned on the applicability of the rules. Due to the nature of such obligations, including their scope to impact future rights, the hearing is likely to occur more efficiently if such an examination involves the participation of a disinterested advocate.

[10] The Respondent submitted the issues identified in (a), (b), (c), and (e) above are legally complex issues in the context of an unfair dismissal hearing, such that the involvement of representatives with experience in the field is likely to aid the Commission in the adjudication of such issues.

[11] The Respondent submitted further that given the degree of acrimony between the parties the presence of a legal representative to communicate with the Applicant would better facilitate agreements between the parties on the conduct and scope of the hearing, providing for a more efficient hearing.

[12] The Applicant submitted the Respondent’s legal representation is unlikely to ameliorate the efficiency of this proceeding, because:

i. The Respondent is a law firm that provides legal services in respect of employment law;

ii. The alleged “peculiar and complex features” particularised in paragraph 7 of the Respondent’s submissions are not outside the scope of the application of section 387 of the Act and the Respondent, as a group of experienced legal practitioners, ought to be able to deal with them efficiently;

iii. The applicability of the ASCR in cross-examination is merely an application of rules to the facts, adjudication of which the Applicant says can be made efficiently by the Commission and, as such the participation of a disinterested advocate will not yield, if any, substantial efficiency;

iv. The alleged acrimony is not a relevant consideration, because the matter has already been set down for hearing and the parties have agreed to proceed accordingly;

Fairness – Whether Respondent is restricted in its ability to represent itself

[13] The Respondent submitted it is in a position where it is restricted in its ability to represent itself. The Respondent submitted it makes this observation on three basis; the relevant witnesses are board members, the application of civil penalty privilege, and the absence of human resources support.

[14] The Respondent submitted it is an incorporated legal practice within the meaning of the Legal Profession Act 2007 (Qld) (“LPA”). The Respondent submitted the Applicant has identified directors of the Respondent, Mr Chang Park and Mr Kevin Kim as witnesses to the proceeding; a position where it becomes more difficult to represent the Respondent and give evidence in the proceeding. It submitted this position is made more difficult where the Applicant advances allegations of professional misfeasance in an alleged contravention of the Australian Solicitors Conduct Rules.

[15] Further, the Respondent submitted the Applicant makes allegations of factual inconsistencies between various directors of the Respondent. The Respondent submitted this places it into a difficult position, where the two directors of the company are charged with the responsibility of defending themselves, and the company, concurrently. The Respondent submitted as a matter of practicality as this will require the directors to re-examine each other where (on the Applicant’s case) the witnesses have contradictory accounts.

[16] The Respondent submitted this is made more significant when consideration is given to the concurrent proceedings of the Applicant. It submitted the Applicant filed a proceeding for underpayment in the Federal Circuit Court on 27 June 2021 that names Mr Chang as the Second Respondent, and the business as the First Respondent.

[17] The Respondent submitted both the Respondent and Mr Chang are engaged in a proceeding for a civil penalty remedy, which enlivens Mr Chang’s right to privilege against self-incrimination for a civil penalty contravention. In the event Mr Chang is placed in the position to represent the Respondent, such a privilege may be inadvertently waived in submissions or in the giving of evidence.

[18] For these reasons, the Respondent submitted a separate legal representative removes the impairments to the Respondent by providing advocacy for the Respondent, which is divorced from the directors. It submitted this enables the case to be confined to the issues, and matters, of relevance without substantial risks to the collateral legal rights. In short, legal representatives add a degree of fairness to the Respondent by insulating their interests from the potential conflicts for the directors of the Respondent.

[19] The Respondent submitted further that it does not have human resources support. It submitted that while the Respondent is a law firm, it is a firm without industrial or employment law experience in this forum. The Respondent submitted this is quite different from a business with internal established human resource support as the legal experiences of the Respondent do not provide advantageous knowledge or experience to assist in the participation in the process. The Respondent submitted there is no benefit derived from their status as a law firm as they have not the expertise to cause any advantage. The Respondent submitted further it has no experience in advocacy in the Commission.

[20] The Respondent submitted the above observations regarding the position of the directors would place the Respondent in a disadvantageous position without legal representatives.

[21] The Applicant submitted the Respondent is not restricted in its ability to represent itself, because:

i. Some or all of the difficulties raised by the Respondent are also applicable to the Applicant in the forthcoming hearing;

ii. This proceeding is concerning unfair dismissal of the Applicant’s employment, issues of which must be determined with reference to section 387 of the Act, which the Applicant submits is not a provision relevant to civil penalty. Therefore, this proceeding has nothing to do with contravention of a civil remedy provision and the difficulties outlined in paragraph 15 of the Respondent’s submissions will not be imposed on the Respondent;

iii. Absence of human resource support is not a relevant consideration to section 596 of the Act, and to reiterate, the Respondent is a law practice that provides legal services in respect of employment law and has pride that it regularly advises the Korean Embassy in relation to Australian employment law, for which the Respondent should be familiar with the Australian Fair Work regime and the procedures;

iv. The Respondent is a group of experienced legal practitioners, the main director of which is an accredited specialist lawyer, US attorney and Australian solicitor who completed practice management course;

v. With no disrespect to the Respondent, their alleged lack of experience in advocacy in the Commission does not, in any way, contribute to the relevant considerations under section 596 of the Act;

vi. The observations made in respect of their alleged lack of experience in advocacy is not materially distinguishable from the Applicant’s and as a matter of fact, the Applicant’s position is worse as he has no post admission experience and no experience in employment law, advocacy in Commission, and any proceedings of this kind at all.

Fairness between the parties

[22] The Respondent submitted that the present matter has indicia of significant tension between the parties which may impact the proceeding. It submitted placing a legal representative as a conduit between the Applicant and the directors of the Respondent may facilitate a fairer proceeding for the Applicant, as it will remove a personal element to pre-hearing correspondence and negotiation.

[23] The Applicant submitted that notwithstanding the significant tension, the alleged indicia of acrimony are:

i. “Purely outrageous” as the Applicant is simply pursuing his entitlements in accordance with the Act;

ii. Irrelevant to the application of section 596 of the Act as it will not yield any fruitful outcome as the matter has already been set down for hearing and Mr Park agreed to proceed to the hearing accordingly;

iii. Immaterial to the application of section 596 of the Act, because the Respondent, as a group of experienced legal practitioners, should be able to set aside their emotion and focus on factual matters during the hearing; and say further that

iv. it remains unchanged that the Applicant has no legal representative and, thus the difficulties raised by the Respondent will be imposed on the Applicant in accordance with their theory.

[24] The Applicant submitted if the leave is granted for the Respondent to be represented, it will adversely affect his position according to their theory as it will be as equally applicable to the Applicant, and the hearing will be conducted unfairly to the Applicant.

[25] The Applicant submitted his request for the hearing to be conducted on the papers, together with the difficulties outlined in his plea dated 22 July 2021 was opposed by the Respondent.

[26] The Applicant submitted the difficulties he outlined in his plea were objected to and denied by Respondent on the basis that “the parties are within their respective capacities of a natural individual and a corporate entity and not formally represented”. For this reason, Mr Park alleged that the difficulties he had addressed in his plea “do not make sense”, implying that the Respondent has no intention to engage any lawyers.

[27] The Applicant submitted that the difficulties pressed by Mr Park and the Respondent in their submissions on 11 August 2021 are inconsistent with their proposition contained in Mr Park’s email to the Commissioner of 23 July 2021.

[28] The Applicant submitted the difficulties pressed by the Applicant, a natural individual, were opposed and eventually denied.

[29] The Applicant submitted the level of difficulties imposed on the Respondent, a corporate entity, cannot prevail the level of difficulties imposed on an individual person.

[30] The Applicant submitted as outlined in his plea of 22 July 2021, the Applicant continues to suffer from financial hardship. He submitted when he filed his application for the underpayment claim at the Federal Circuit Court of Australia, the Court was satisfied with his financial difficulties and waived its fees of $700. The Applicant submitted he has no financial means to engage any lawyers for this matter and the difficulties he has addressed in his plea remain unchanged and it will continue until the end of the hearing.

[31] The Applicant submitted the difference between the level of legal experience of the parties denotes an underdog situation, somewhat analogous to ‘David and Goliath’. The Applicant submitted even without the legal representative of the Respondent, the underdog situation remains unchanged and there cannot be a fair hearing for the Applicant.

[32] The Applicant submitted if the leave is granted, the Respondent will have two accredited specialist lawyers with overwhelming concurrent level of experience against a junior solicitor with no post admission experience. The Applicant submitted he will suffer significant prejudice and it will be unfair to the Applicant.

[33] The Applicant submitted Mr Brad Petley will be obliged to act in the best interest of the Respondent and its directors and, as such placing a legal representative as a conduit between the parties will not facilitate a fairer proceeding for the Applicant. The Applicant submitted it will be biased and there will be no impartiality.

[34] The Applicant submitted he believes having a fair hearing is the paramount consideration and the Respondent’s request for the legal representation favours the Respondent only and submitted the leave should not be granted as it is not in line with the principles of procedural fairness.

Consideration

[35] I accept the Respondent’s submission that there are peculiar features of this matter that will add a degree of complexity, including the fact of the matter involving misconduct allegations involving a solicitor, and concurrent separate legal proceedings being on foot in a different jurisdiction involving the witnesses in the proceedings. Having weighed the respective submissions I am satisfied that granting legal representation to the Respondent will enable the matter to be dealt with more efficiently and the matter will run more smoothly, taking into account that complexity.

[36] I have also considered the respective submissions concerning s.596(2)(b) and (c) however having been satisfied that the proceedings will run more efficiently taking into account complexity if leave is granted, I have not been persuaded in the exercise of my discretion that the considerations in regard to s.596(2)(b) and (c) give rise to any matters that would cause me to refuse leave having been satisfied it is warranted in this case for reasons of efficiency related to complexity.

COMMISSIONER

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