Dr Frank Will v Deakin University

[2015] FWC 1069

[2015] FWC 1069

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Dr Frank Will
v
Deakin University
(U2014/13077)

COMMISSIONER BISSETT MELBOURNE, 13 FEBRUARY 2015

Application for relief from unfair dismissal - Application for permission to be represented by a ‘lawyer or paid agent’ pursuant to s.596 of the Fair Work Act 2009.

[1] Dr Frank Will has made an application pursuant to s.394 of the Fair Work Act 2009 (the Act) for relief from unfair dismissal. Dr Will was employed with Deakin University (the University). The matter is to be heard on 18 - 20 February 2015. The University has sought permission, pursuant to s.596 of the Act to be represented by a lawyer in the proceedings. This decision deals with that application.

[2] Section 596 of the Act states (in part):

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).

[3] On 19 December 2014 the University made a written application seeking permission to be represented. Dr Will had previously indicated his opposition to the University being so represented and set out brief reasons as to why he objected by email dated 18 December 2014.

[4] Following the referral of the file to my chambers I wrote to both the University and Dr Will and advised that I intended to make a decision on the issue of representation prior to the scheduled hearing of the unfair dismissal application and issued directions for further submissions.

[5] In accordance with the directions in that email further submissions were received from Dr Will on 10 February 2015 with the University providing a reply on 12 February 2015.

Submissions

Deakin University

[6] The University submits that the matter will be able to be dealt with more efficiently, taking into account the complexity of the matter if it was granted permission to be represented. The University submits that Dr Will’s case is factually and legally complex. Dr Wills has filed substantial material whose relevance is questionable. It further submits that Dr Wills is conducting his own case and the University does not have specialist staff with experience in dealing with such matters before the Commission. The University also submits that the matter would be conducted more efficiently if permission was granted because Dr Will is presenting his own case and comes from a non-english speaking background.

[7] Further, the University submits that if permission was not granted it would have to rely on its staff who do not have experience in such matters. It submits that the ‘case will involve significant documentary evidence and the need for forensic cross examination of a number of witnesses.’ To rely on its own personal it says would prevent it from being effectively represented.

[8] The University says that it will be ‘beneficial and fair between the parties, in order to provide structure to, and narrow the focus of, the matter’ to be heard.

[9] For these reason the University says that the matter could be deal with more efficiently, given the complexity of the matter, if it was granted permission.

Dr Wills

[10] In his objection to permission being granted Dr Will says that permission should not be granted because:

• the University is publicly funded and should not be allowed to defend ‘potential unlawful actions’ using public money;



• the cost of legal representation is close to the financial remedy he seeks;



• it would be unfair to him as he cannot afford legal representation;



• the University has already ‘caused enough damage to the public’ by prohibiting Dr Will from conducting research of benefit to the public and by hindering the commercialisation of Dr Will’s research which would be of benefit to the public.

[11] In his submissions of 9 February 2015 Dr Will submits that the University does have specialist staff who can deal with the application before the Commission. It has a workplace relations section within the human resources department with a number of skilled staff.

[12] Further, he says that the University has a law school with staff who specialise in workplace law and who regularly publish books and papers on workplace relations matters.

[13] Dr Will says that it would not be more efficient to allow the University to be represented by a lawyer as the lawyer will need to be externally engaged at costs ultimately met by the public. He also says that it would not be more efficient to enable the University to refer to authorities when he is unable to do so.

[14] Dr Will distinguishes the authorities relied on by the University in its submission on the basis of the relative size and skills within the organisations subject to the various decisions.

[15] Dr Will says that to allow the University to be represented by a lawyer would result in a shift of power to the University which would be unfair to him. It would be fair, he submits, if both he and the University were represented by one person each.

[16] Ultimately Dr Will says the matter is not complex, the University raised no issues in its substantive submissions about the complexity of Dr Will’s material and the prescribed conditions for permission to be represented have not been met.

Consideration

[17] The discretion to grant permission to be represented can only be exercised if one of the conditions in s.596(2)(a)-(c) has been satisfied. The satisfaction of one of these conditions does not lead to an automatic right to be represented; rather it allows me to consider the exercise of my discretion as to whether I should grant permission to be represented. The decision making process for permission is, in this respect, a two stage process.

[18] The University says that each of the conditions in s.596(a)-(c) have been met. I therefore turn first to consider if any one of the conditions are satisfied.

[19] In making this decision I have had the benefit of access to all of the material filed (and presumably to be relied on in some way) by both Dr Will and the University.

The matter could be dealt with more efficiently, taking into account the complexity of the matter (s.596(2)(a))

[20] In order to determine if this condition is met it is necessary, first, to consider the complexity of the matter.

[21] The central issue in the unfair dismissal, as I comprehend it on the basis of the material filed, goes to whether or not Dr Will used his position at the University to further his own private interests (as opposed to the interests of the University) and whether he disobeyed a direction given to him not to engage in outside work.

[22] The material filed by Dr Will consists of a submission, a witness statement and some 84 attachments, including further witness statements. The material is substantial in both the number of documents and the volume of the documents. The University has also filed substantial material - most in the form of three witness statements.

[23] The relevance and admissibility of at least some of the material sought to be relied on by Dr Will is put at issue by the University in its submission on permission. Whilst it is true that this was not raised in the University’s submissions filed in accordance with directions that does not mean relevance will not be an issue in the hearing.

[24] I am satisfied that there is some complexity in the matters to be considered in this matter. Whilst the basic questions to be answered appears simple the volume of material filed, in particular by Dr Will, does create a level of complexity. Dr Will’s witness statement also suggests that there is substantial contested evidence as to what permission was given and what was known and tacitly acknowledged, and hence supported, by his managers at the University

[25] In respect to whether the matter could be dealt with more efficiently given this complexity, whilst I accept that the University does have a human resources department, and even if I accept that it has specialised workplace relations officers, I do not consider that I should take into account that the University has employees in its law school in considering the skills within the University to deal with this matter. Staff of the University employed in the law school are engaged for their academic expertise. Assumptions should not be made of their ability to efficiently and effectively present a case before the Commission.

[26] The assessment required of the Commission under s.596 is not if the matter could be deal with efficiently by the University given its staffing and/or academic base but rather if the matter could be dealt with more efficiently (than would otherwise be the case) if permission to be represented by a lawyer or paid agent was granted.

[27] In ASC Pty Ltd v The Australian Workers’ Union Deputy President Gostencnik observed that

In any event the question, for the purposes of granting permission for the reasons set out in section 596 (2)(a) of the Act, is not whether ASC can be represented or even effectively represented by in-house resources, rather the relevant question is whether, taking into account the complexity of the matter, the grant of permission to ASC to be represented by a lawyer (in this case one experienced in advocacy and industrial law) would enable the matter to be dealt with more efficiently. The in-house capacity of ASC has a bearing on that assessment but I am satisfied that in this case the grant of permission to ASC for external legal representation will have that result. 1

[28] I respectfully agree with the observation of the Deputy President.

[29] That the University receives some public funding is not a relevant consideration in determining if the requirement under s.596(2)(a) has been met. The Act does not set different standards for publicly funded bodies as opposed to other organisations.

[30] In these circumstances I am satisfied that the matter will be dealt with more efficiently if permission was given to the University to be represented by a lawyer in proceedings.

[31] Having found that the conditions in s.596(a) has been met it is not necessary to decide if the condition in s.596(b) or (c) have been met. I must instead decide whether I should exercise my discretion to grant permission.

Should permission be granted?

[32] In considering whether or not to exercise my discretion and grant permission to the University to be represented I have taken into account the submissions of Dr Will (which go to the exercise of discretion in addition to whether the conditions necessary for that exercise have been met). I am not persuaded, on the basis of Dr Will’s submissions, that I should not grant permission. I acknowledge that Dr Will is not represented and is concerned that the University will have more people present than just the person presenting the case. This will be the case however regardless of whether I grant permission or not.

[33] In addition to the complexity outlined above this matter will involve substantial witness evidence and cross examination of this evidence. Further, an interpreter has been booked for the hearing at the request of Dr Will.

[34] Taking all of these matters into account I am satisfied that the Commission will be assisted in the conduct of the matter if permission is granted.

[35] The application by Deakin University to be represented by a lawyer in hearing of the unfair dismissal application is therefore granted.

COMMISSIONER

Final written submissions:

Applicant: 9 February 2015.
Respondent: 12 February 2015.

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 1   [2014] FWC 544 [16].