Dilip Srivastava v Australian Security and Investment Commission

[2017] FWC 5264

[2017] FWC 5264

FAIR WORK COMMISSION

DECISION

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

Dilip Srivastava
v
Australian Security and Investment Commission
(U2017/9151)

COMMISSIONER CAMBRIDGE SYDNEY, 13 OCTOBER 2017

Termination of employment - representation by lawyers and paid agents.

[1] This Decision involves an application for unfair dismissal remedy made pursuant to section 394 of the Fair Work Act 2009 (the Act). The application was made by Dilip Srivastava (the applicant). The respondent employer is the Australian Securities and Investments Commission (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 23 August 2017, and the applicant is not represented. The employer filed a response to the application dated 31 August 2017. Although a notice of representative commencing to act on behalf of the employer has not been filed, the employer’s response indicated that Minter Ellison lawyers represented the employer.

[4] The file indicates that conciliation of the matter occurred on 18 September 2017. A Pre-Hearing Conference was conducted on 28 September 2017, at which time the applicant appeared unrepresented, and Mr G Jolly from Minter Ellison lawyers appeared for the employer.

[5] During the Pre-Hearing Conference, the applicant raised objection to the employer being represented by lawyers or paid agents. The Commission issued Directions which provided for the filing of evidence and other material in respect to both the representation question and the substantive matter. The matter has been scheduled for Hearing/Conference on 13 November 2017, in Sydney.

[6] On 5 October 2017, Minter Ellison lawyers filed submissions in support of permission being granted for the employer to be represented by lawyers or paid agents. On 6 October 2017, the applicant filed a communication which confirmed his objection to the employer being represented by lawyers or paid agents. This communication also set out the basis for the applicant’s opposition to the employer being granted permission to be represented by lawyers or paid agents.

[7] I have examined and considered the filed documentary material including, in particular, the written submissions made by Minter Ellison lawyerson the representation question as the basis for this Decision.

Consideration

[8] The question of representation in proceedings before the Commission is governed by section 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.”

[9] 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.

[10] Subsection 596 (2) of the Act includes three factors which separately or in combination, provide 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 employer’s representatives have submitted that those factors found in subsection 596(2) (a) of the Act, involving complexity/efficiency, operated to provide basis for the Commission to grant permission for the employer to be represented by lawyers. Conversely, the applicant stated that he objected to the employer being granted permission for legal representation particularly because he was representing himself, and that he was an ordinary person. Further, the applicant referred to the fair hearing obligations which required that proceedings be; fair and just; quick, informal and avoid unnecessary technicalities; be open and transparent; and promote a harmonious and cooperative environment.

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

[12] The submissions made on behalf of the employer asserted that the criteria in subsection 596 (2) (a) of the Act were satisfied in this instance. It was asserted that complexity arose from a jurisdictional issue as to whether the dismissal of the applicant was a case of genuine redundancy. Further, it was submitted on behalf of the employer that there was some factual complexity regarding the assertions that the applicant made regarding the true reasons for the redundancy.

[13] It was further submitted that legal representation would allow the matter to be dealt with more efficiently even if it was determined that the matter did not involve any particular complexity.

[14] Upon examination of the material which has been filed, and a consideration of any contests that may arise from it, I am unable to recognise a level of complexity beyond that which would ordinarily be found in a routine unfair dismissal matter. Although there may be grounds upon which to establish that the matter would be dealt with more efficiently if legal representation was permitted, any such potential efficiency must be evaluated against other relevant factors.

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

[15] The submissions made on behalf of the employer did not advance any argument that it would be disadvantaged if it was unable to have a lawyer represent it. There was no submission made that the employer would face an inability to effectively represent itself in the absence of lawyers or paid agents.

[16] It would appear to be a natural consequence of the size and nature of the employer’s operation that it would have personnel that would be capable of making a “striking impression” or be “impressive” or be “powerful in effect.”

Fairness - Subsection 596 (2) (c)

[17] The issue of fairness between the Parties is a matter of recognised significance. In this instance the applicant has raised concern regarding the question of fairness.

[18] The submissions made on behalf of the employer stated that “…the fact that one party will have legal representation and the other will not is not sufficient to demonstrate any manifest injustice.” The submissions made on behalf of the employer sought to distinguish the circumstances that were relevant in the Warrell Judgement.

[19] The submissions made on behalf of the employer made particular mention of the capacities of the respective applicants, where in Warrell, it was noted that the applicant was “functionally illiterate and brain-damaged.” It was submitted that “Unlike Mr Walton, [sic] Mr Srivastava does not suffer any special disadvantage.”Further, it was submitted that Mr Srivastava was a professional who was able to articulate his case and he showed no anxiety about representing himself.

[20] Although the applicant may be more capable of effectively representing himself when compared with some other person with less formal qualifications, he is not a lawyer, and it is clear that he perceives that he would be put at a disadvantage if his opponent was an external lawyer. Further, the applicant has expressed apprehension that the presence of external legal representatives may not assist in providing a “friendly and harmonious environment.”

[21] In this instance, if permission for legal representation for the employer was granted there would appear to be an imbalance created because the applicant would be representing himself while the employer obtained external legal representation. Particularly given the size and nature of the employer’s operation, there would also appear to be little unfairness created if the employer was required to utilise its own staff.

[22] In this instance, the determination of the representation question has been strongly influenced by the particular factors regarding fairness between the Parties, and the requirement for informality, as was recognised by his Honour in the Warrell Judgment; “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.” 2

[23] Further, it should be recognised that the convenience that the Commission may obtain from the efficient presentation and assistance provided by legal representatives, must be carefully balanced against other factors, particularly, any genuinely perceived injustice. Although the Commission may generally welcome the assistance provided by the presence of lawyers in proceedings, the convenience of the Commission should not operate so as to create any perceived injustice.

[24] In the present circumstances, applying in particular, the reasoning contained in the Judgment in the Warrell case, I consider that unnecessary formality would be created by the granting of permission for legal representation. Further, a perceived unfairness between the respective Parties would emerge if permission was granted, and an imbalance created between an unrepresented applicant against the employer’s external legal representatives. The resultant imbalance created by the appearance of more advantageous representation of the employer against the applicant should be avoided, particularly in circumstances where complexity has not been established. Therefore, the fairness criterion has, in this instance, operated strongly against the granting of permission.

[25] 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 refused.

COMMISSIONER

 1 Warrell v Walton [2013] FCA 291.

 2   Ibid @ paragraph 25.

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