David Neville v Lake Fox Limited T/A Rocky's Own Transport Company

[2020] FWC 4095

[2020] FWC 4095

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

David Neville
v
Lake Fox Limited T/A Rocky’s Own Transport Company
(U2020/3651)

COMMISSIONER CAMBRIDGE SYDNEY, 6 AUGUST 2020

Termination of employment - representation by lawyers and paid agents.

[1] This Decision involves an application for unfair dismissal remedy which has been made under section 394 of the Fair Work Act 2009 (the Act). The application was made by David Neville (the applicant). The respondent employer has been identified to be Lake Fox Limited T/A Rocky’s Own Transport Company (the employer).

[2] This Decision is made in respect to the discrete question as to whether the Fair Work Commission (the Commission) should grant permission for the employer to be represented by lawyers or paid agents (the representation question).

[3] The application was filed on 26 March 2020, and it indicated that the date of the applicant’s alleged unfair dismissal was 16 March 2020. Consequently, the application was made within the 21 day time limit prescribed by subsection 394 (2) (a) of the Act. On 24 April 2020, the employer filed an employer response to the unfair dismissal application (Form F3).

[4] The filed documentation indicates that conciliation of the matter occurred on 27 April 2020. However, agreement was not reached to settle the matter, and during a telephone Pre-Hearing Conference held on 5 May 2020, the applicant indicated inter alia, that he would be engaging a lawyer or paid agent as a representative. The employer also indicated that it intended to engage lawyers or paid agents to act on its behalf. The Commission issued Directions that required the Parties to file and serve evidence and other material prior to a scheduled Hearing. The substantive matter has subsequently been re-scheduled for Hearing/Conference on 12 August 2020 in Orange.

[5] On 1 July 2020, solicitors acting for the employer, filed a notice that a lawyer or paid agent acts for a person (Form F53). On 2 July 2020, the applicant advised that he opposed permission being granted for the employer to be represented by lawyers or paid agents. Consequently, on 3 July 2020, the Commission issued further Directions that required the Parties to file and serve submissions in respect to the contested representation question.

[6] On 17 July 2020, the solicitors acting for the employer filed submissions on the representation question in accordance with the Directions issued on 3 July 2020. The Directions required the applicant to file and serve any submissions in respect of the representation question by no later than 31 July 2020. The applicant provided no submissions or other material in accordance with this Direction. The representation question has been determined upon the documentary material which has been filed in accordance with the Directions issued by the Commission on 3 July 2020.

Consideration

[7] The question of representation in proceedings before the Commission is governed by s. 596 of the Act which is in the following terms:

“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.”

[8] The legislative intentions underpinning s. 596 of the Act have been the subject of various Decisions of the Commission and of Fair Work Australia. Further, the approach to consideration of the representation question has been examined by way of Judicial Review in the (incorrectly named) Judgment of Warrell v Walton  1 (Warrell) and it is relevant to note, in particular, paragraph 25 of that Judgment.

[9] It is also relevant to note that the operation of s. 596 of the Act has been the subject of more recent examination by a Full Bench Decision in the case of Fitzgerald v Woolworths Limited  2 (Fitzgerald). The Full Bench Decision in Fitzgerald has established, inter alia, particular practical consequences that have application in circumstances where permission for a Party to be represented by lawyers or paid agents is refused, or where lawyers or paid agents undertake a representative role without first obtaining the permission of the Commission.

[10] Subsection 596 (2) of the Act includes three factors which separately or in combination, provide the basis upon which the Commission can grant permission for a lawyer or paid agent to represent a Party in proceedings such as the Hearing/Conference of a claim for unfair dismissal. The three factors which can be identified in paragraphs (a), (b) and (c) of subsection 596 (2), can be paraphrased as: (a) complexity/efficiency; (b) inability/effectively; and (c) fairness.

[11] In this case, the solicitors for the employer have submitted that there was sound basis for the Commission to grant permission for the employer to be represented by lawyers. It was submitted inter alia, that the matter would be dealt with more efficiently if lawyers were permitted to represent the employer. Further, it was submitted that the employer would be unable to represent itself effectively in circumstances where the employer had only two HR managers both of whom would be key witnesses in the proceedings, and neither had any experience in conducting a defence of an unfair dismissal claim.

[12] Conversely, the applicant has not made any submissions on the representation question.

Complexity/Efficiency - Subsection 596 (2) (a)

[13] In this instance, the solicitors for the employer have submitted that the Commission would be assisted by the involvement of legal representatives who would enable the matter to be dealt with more efficiently.

[14] Upon examination of the material which has been filed, and a consideration of any contests that may arise from it, it is clear that the matter does not involve any factual complexity, nor does it raise any complex questions of law. However, some of the material that has been provided by the applicant appears to introduce a degree of complexity or perhaps confusion.

[15] Further, as a result of COVID-19 travel restrictions, the Hearing, which is being held in Orange, will involve remote witness evidence to be taken via telephone from the employer’s witnesses located in Queensland. The attendance of representatives at the Hearing in Orange will assist in providing efficiency in respect of any potential difficulties associated with remote witness evidence taken by telephone. Consequently, the particular circumstances regarding the configuration of the Hearing, and the potential difficulties associated with remote witness evidence taken via telephone, would be assisted by the presence of representatives. Therefore, in this instance, the complexity/efficiency factor provides support for granting permission for the employer to be represented by lawyers.

Inability/Effectively - Subsection 596 (2) (b)

[16] The solicitors for the employer submitted that the employer would be unable to represent itself effectively without the assistance of lawyers. In view of the configuration of the Hearing in Orange and remote witnesses located interstate, there is clear potential that the employer would not be able to represent itself effectively without representatives being present at the Hearing in Orange.

[17] The applicant would logically have a level of inexperience and unfamiliarity with quasi legal proceedings such as the Hearing of an unfair dismissal claim. The relevant staff for the employer would be similarly inexperienced and unfamiliar with the unfair dismissal proceedings, However, the difficulties associated with the configuration of the Hearing would understandably provide significant potential for the employer to be unable to represent itself effectively. Even in the context of a case without complexity, the employer would be likely to be incapable of making a “striking impression” or be “impressive” or be “powerful in effect” because of the remote location of its HR Managers who are also witnesses. Consequently, this factor provides support for granting permission for the employer to be represented by lawyers.

Fairness - Subsection 596 (2) (c)

[18] The issue of fairness between the Parties is a matter of recognised significance. In this instance the solicitors for the employer have not made substantial submissions on this point. Understandably the applicant may perceive that he would be at a disadvantage if permission was granted for a lawyer to represent the employer. However, he has made no submission to this effect.

[19] In this case, having regard for the respective representational positions that were advanced by the Parties, I have decided to treat this factor regarding fairness as being neutral.

[20] Although the Act envisages that Parties appearing before the Commission would not be represented by lawyers or paid agents, the particular circumstances that have been identified in this instance would be assisted by the involvement of lawyers to represent the employer. Consequently, the circumstances in this instance have provided support for permission to be granted on the basis of efficiency and effective representation.

[21] In view of the conclusions that I have reached in respect of each of the relevant aspects of subsection 596 (2) of the Act, the permission sought by the employer to be represented by lawyers or paid agents is granted. Permission is accordingly granted for either Party to be represented by lawyers or paid agents

COMMISSIONER

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 1 Warrell v Walton [2013] FCA 291.

 2   Stephen Fitzgerald v Woolworths Limited [2017] FWCFB 2797.