Dr Cameron Christophers v Deanne Carr Dental Pty ltd T/A Envisage Dental studio

[2014] FWC 791

[2014] FWC 791

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Dr Cameron Christophers
v
Deanne Carr Dental Pty ltd T/A Envisage Dental studio
(U2013/14548)

COMMISSIONER SIMPSON BRISBANE, 7 FEBRUARY 2014

[1] This matter involves whether, pursuant to section 596 of the Fair Work Act 2009 (“the Act”) Deanne Carr Dental Pty Ltd T/A Envisage Dental studio (“the Respondent”) should be granted permission to be represented by a lawyer or paid agent for the purposes of determining an application for an unfair dismissal remedy pursuant to s.394.

[2] The s.394 application was listed for directions on Wednesday 29 January 2014 for the purpose of programming the hearing. The Applicant, Dr Cameron Christophers (“the Applicant”) raised objections to the Respondent being legally represented during the conduct of a hearing.

[3] Hearing dates were set for Monday 24 March 2014. I requested that the parties provide submissions on the objection pursuant to s.596 by Friday 31 January and I would determine the matter based on those submissions.

Two Jurisdictional Issues

[4] The Respondent presses two jurisdictional objections, firstly that the Applicant was not an employee but an independent contractor, and secondly that the Applicant’s income exceeded the high income threshold.

[5] Both the Applicant and Respondent provided written submissions on the representation on issue as requested. Section 596 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 FWC (including by making an application or submission to FWC on behalf of the person) by a lawyer or paid agent only with the permission of FWC.

(2) FWC may grant permission for a person to be represented by a lawyer or paid agent in a matter before 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 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) 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 employersthat is not registered under the Fair Work (Registered Organisations) Act 2009; or

(iii) a peak council; or

(iv) a bargaining representative;

that is representing the person; or

(c) is a bargaining representative.

Submissions

[6] The Applicant’s submission referred to Practice Note 2/2013 regarding hearings in the Tribunal, and the Explanatory Memorandum to the Fair Work Bill 2008 (Cth).

[7] The Respondent seeks the granting of permission to be legally represented in respect of both the jurisdictional issues and the substantive matter should the matter proceed to that stage. A program of Directions is set for the hearing of the jurisdictional matters. The Respondent correctly asserted it need only make out one of the criteria in Section 596 to be able to be granted legal representation.

[8] The Respondent in its submission described what it saw as the relevant facts including that both the Applicant and Respondent are registered Dental Practitioners, both are well educated and articulate but neither legally trained. In terms of the contractor/employee issue the Respondent said the Applicant presented the relevant contract to the Respondent and relied upon its terms, the Respondent operates a small dental practice in a single location.

[9] The Respondents assets the two jurisdictional issues are necessarily complex as a result of case law.

Section 596(2)(a)

[10] In regard to Section 596(2)(a) the Applicant argued until submissions were filed the Commission would be unable to determine whether granting permission would allow for the matter to be more efficient, and further argued the once the material is filed it will be apparent the matter is not complex.

[11] The Respondent said both jurisdictional issues are complex on the facts. It relies on a decision of Deputy President Richards in Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v UGL Resources Pty Limited (Project Aurora) 1 where it was said;

“It appears to me that where the Respondent (in this case) seeks to agitate a jurisdictional issue then it would follow that representation by a lawyer would be a reasonable course. Jurisdictional issues by their nature are prospectively complex in their own right, and/or else may require a degree of familiarity with court and tribunal jurisprudence or authorities”

[12] The matter of determining whether a relationship is one of employment or not can be complex. On the material presented to this stage it would appear this case involves some complexity. In a dispute such as this one the true character of a relationship between the parties may be, and is often found to be not what a party considered it. The label given to the relationship is a consideration, but is not determinative. The matter requires an examination of the real substance of the relationship in question, and invariably involves consideration of legal authorities.

[13] The Applicant referred to firstly a decision of the Federal Court in Warrell v Walton 2, secondly a decision of Cambridge C of this Tribunal in Azzopardi v Serco Sodexo Defence Services Pty Limited,3 and also a Full Bench decision of this Tribunal in G & S Fortunato Group Pty Ltd v Straneri. 4Each of those decisions dealt with the matter of permission for legal representation however each of those matters can be distinguished from this case. In Warrell a key factor was the circumstances of the particular limitations of the Applicant. Unlike in this case, in Azzopardi the Commissioner was not satisfied on the grounds of complexity. Fortunato dealt with appeal proceedings and again, unlike here, found the matter concerning an extension of time was not complex.

[14] Similarly to the contractor/employee matter, the high income threshold matter would appear to be likely to deal with the way the relationship was structured and there will be a need for argument going to relevant case law. I adopt the approach of Deputy President Richards set out above in CEPU v UGL Resources Pty Limited. I am satisfied on the basis of the material before me and the submissions provided that it is appropriate to grant legal representation for the purposes of dealing with the two jurisdictional questions because it would enable the matters to be dealt with more efficiently, taking into account their complexity. On having satisfied the criteria in Section 596(2)(a) it is unnecessary for me to go on to consider the other matters going to Section 596(2)(b) and (c) at length, suffice to say those submissions are not of such a nature that they would convince me not to grant legal representation at this stage given my findings concerning s.596(2)(a).

[15] Permission is granted for Respondent to be legally represented in the jurisdictional matters. I will deal with the matter of representation regarding the substantive matter if the matter proceeds to that stage.

COMMISSIONER

 1   Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v UGL Resources Pty Limited (Project Aurora)[2012] FWA 2966

 2   Warrell v Walton [2013] FCA 291

 3   Azzopardi v Serco Sodexo Defence Services Pty Limited[2013] FWC 3405

 4   G & S Fortunato Group Pty Ltd v Straneri [2013] FBFWC 4098.

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