Dr Judith Lichtenzveig v Curtin University of Technology T/A Curtin University

[2017] FWC 5304

[2017] FWC 5304

The attached document replaces the document previously issued with the above code on 13 October 2017.

Formatting changes required

Associate to Deputy President Bull

Dated 13 October 2017

[2017] FWC 5304

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Dr Judith Lichtenzveig
v
Curtin University of Technology T/A Curtin University
(U2017/5351)

DEPUTY PRESIDENT BULL PERTH, 13 OCTOBER 2017

S.596(2) Application for permission to be represented by a lawyer, whether matter will be dealt with more efficiently taking into account the complexity of the matter, exercise of discretion – application granted.

[1] The applicant, Dr Judith Lichtenzveig, has filed an application in the Fair Work Commission alleging she was unfairly dismissed. The respondent employer, Curtin University of Technology, opposes the application and seeks, pursuant to s.596 of the Fair Work Act 2009 (FW Act), to be represented by a lawyer in the forthcoming hearing to determine the application, in this case Mr David Heldsinger, a legal practitioner and director of Heldsinger Legal. The applicant opposes the employer’s request for representation by a lawyer. The matter is listed for a two day hearing commencing 17 October 2017.

[2] The matter of representation has been dealt with by way of written submissions filed by the parties.

[3] Section 596(2) of the FW Act is the relevant section to be applied in determining applications of this kind. It is expressed in the following terms:

“(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.”

Respondent’s submissions

[4] The respondent raises numerous reasons as to why legal representation should be granted. They include but are not limited to the following:

• The application raises some complicated legal issues including a jurisdictional question as to whether the parties had reached an agreement on terms regarding the termination of the applicant’s employment, that is, whether termination was effective as a matter of law by mutual consent. This also raises complex legal questions of estoppel and res judicata, all of which go to the core legal issue of whether or not the FWC has jurisdiction to hear and determine the unfair dismissal application.

• Mr Heldsinger has extensive experience of workplace relations issues and appears regularly in the Commission, his assistance and experience will allow the matter be dealt with more efficiently. Mr Heldsinger has a detailed and in-depth knowledge and understanding of all the issues in contest and the legal issues involved.

• Heldsinger Legal has had the carriage of this matter and has represented the respondent since 26 February 2016.

• Some of the factual issues will be vigorously contested. Legal representation will assist in managing the degree of complexity raised by the factual issues, the numerous documents and the potential conflicting evidentiary issues.

• The applicant concedes the matter is complex.

• The applicant has filed a witness statement that is 52 pages in length with almost 100 annexures.

• There are legal issues concerning the appropriate remedy as the applicant is seeking reinstatement, which is opposed by the respondent on the evidence and as a matter of law.

• The respondent’s Legal Counsel - Legal and Compliance Services, will be acting as the instructor.

• The matter is complex and the guidance offered by the presence of an experienced legal practitioner with a long history and deep understanding of the factual and legal issues will ensure the matter is ‘dealt with more efficiently’.

Applicant’s submissions

[5] The applicant opposes the University’s application and in summary has provided the following reasons in support of her objection:

• The respondent is a large institution with about 7,000 employees. The institution has a large human resources department whose employees have sufficient knowledge and advocacy in workplace relations.

• The University has a legal service unit which includes 5 certified lawyers, two general counsel and three legal counsel with the respondent as its “sole client”. The unit provides legal services on a wide range of matters including disputes and litigation, employment law and industrial relations matters, among others.

• Allowing the respondent to enjoy additional paid legal agents would further contribute to the inequity and disparity in procuring a balance of justice and procedural fairness as the applicant does not have representation and cannot afford representation.

• While the facts in this matter are numerous and at times conflicting their complexity can be more than adequately be dealt with by the respondent’s legal service unit.

• The University’s legal counsel is competent and familiar with the case.

• Mr Heldsinger has represented the respondent in the preparation of submissions, the conciliatory meetings and in the dealings leading to the respondent’s withdrawal of their jurisdiction objection.

• The respondent has put the applicant on notice they will be seeking costs in accordance with s.400A of the FW Act if the settlement offer is continued to be refused.

• At all times, the offers were properly considered, thoroughly evaluated, and declined as they failed to procure an appropriate remedy.

• At the risk of being charged with the costs of the respondent’s paid representation leave should be declined and the excessive costs of such representation avoided.

• The University is a public institution funded ultimately by tax-payers and community efforts, outsourcing paid legal services appears excessive and unnecessary.

Consideration

[6] It is noted that ss.(a), (b) and (c) of s.596 are disjunctive in that it is only necessary for the Commission to find one of the subsections is satisfied to exercise its discretion to grant permission for a person to be represented by a lawyer. In deciding whether to exercise the discretion to grant permission to be represented one of the conditions precedent in s.596(2)(a)-(c) must have been satisfied. The satisfaction of one of these conditions is not determinative but enlivens discretion about whether permission to be represented should be granted. 1

[7] Whether a party can be represented by in-house resources, including in-house lawyers is not the relevant question, as stated by Gostencnik DP in ASC Pty Ltd v The Australian Workers’ Union and others 2:

“[16] 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.”

[8] The principles to be applied in applications for legal representation were considered in Warrell v Walton 3 (Warrell) and subsequently adopted by a Full Bench of this Commission in McAuliffe4. In Warrell, Flick J stated:

“[24] A decision to grant or refuse "permission" for a party to be represented by "a lawyer" pursuant to section 596 cannot be properly characterised as a mere procedural decision. It is a decision which may fundamentally change the dynamics and manner in which a hearing is conducted. It is apparent from the very terms of section 596 that a party "in a matter before FWA" must normally appear on his own behalf. That normal position may only be departed from where an application for permission has been made and resolved in accordance with law, namely where only one or other of the requirements imposed by section 596(2) have been taken into account and considered. The constraints imposed by section 596(2) upon the discretionary power to grant permission reinforce the legislative intent that the granting of permission is far from a mere "formal" act to be acceded to upon the mere making of a request. Even if a request for representation is made, permission may be granted "only if" one or other of the requirements in section 596(2) is satisfied. Even if one or other of those requirements is satisfied, the satisfaction of any requirement is but the condition precedent to the subsequence exercise of the discretion conferred by section 596(2): i.e., "FWA may grant permission...". The satisfaction of any of the requirements set forth in section 596(2)(a) to (c) thus need not of itself dictate that the discretion is automatically to be exercised in favour of granting "permission.”

[9] Having considered the various argumentsof both parties and taking into account the complexity of the matter I consider that the matter would be dealt with more efficiently if legal representation was granted to the respondent. I arrive at this conclusion for the following reasons.

[10] Both parties over two hearing days are to provide extensive evidence through numerous witnesses. It appears from the documentation filed to date that the Commission will be required to determine the relevance of evidence sought to be adduced. The Commission will be assisted by an experienced workplace lawyer, albeit for one party only, to assist in ensuring witness evidence and questions remain relevant to the matters in dispute. A competent industrial legal practitioner would be expected to contribute to the proceedings being suitably focused and efficiently conducted.

[11] Mason CJ in Giannarelli v Wraith 5made the following comments concerning the appearance and assistance provided legal counsel in proceedings:

"[A] barrister's duty to the court epitomises the fact that the course of litigation depends on the exercise by counsel of an independent discretion or judgment in the conduct and management of a case in which he has an eye, not only to his client's success, but also to the speedy and efficient administration of justice. In selecting and limiting the number of witnesses to be called, in deciding what questions will be asked in cross-examination, what topics will be covered in address and what points of law will be raised, counsel exercises an independent judgment so that the time of the court is not taken up unnecessarily, notwithstanding that the client may wish to chase every rabbit down its burrow. The administration of justice in our adversarial system depends in very large measure on the faithful exercise by barristers of this independent judgment in the conduct and management of the case."

[12] A Full Bench of the Commission in E. Allen and Ors v Fluor Construction Services Pty Ltd 6 commented in relation to legal representation:

"[48] A lawyer's duty to the Commission is paramount and supercedes a lawyer's duties to their client. A grant of permission to appear pursuant to section 596(1) of the Act is based upon a presumption that the representative to whom leave is granted will conduct themselves with probity, candour and honesty. The duty of advocates in that regard has been long recognised by the Commission [footnotes omitted]."

[13] The Full Bench in Priestley v Department of Parliamentary Services 7 expressed a similar view in regard to the role of legal representatives:

"[13] In our view DPS has established that representation would assist DPS to bring the best case possible. Representation by persons experienced in the relevant jurisdiction will be of undoubted assistance in this regard. We are satisfied that the particular counsel has the capacity to assist the DPS and assist the Tribunal in performing its functions."

[14] The respondent has advised that it will pursue a jurisdictional objection on the basis that the employment relationship ended by mutual consent and the Commission is without jurisdiction to deal with the application. This argument alone has a sufficient degree of complexity to satisfy the requirements of s.596(2)(a).

[15] The applicant’s concerns relating to the University being a public institution ultimately funded by taxpayers do not raise issues I need to consider under s.596(2).

[16] Accordingly, on the specific facts and circumstances of this matter, to assist the Commission in the efficient hearing of this matter having regard to the industrial and legal complexity, the respondent, pursuant to s.596(2), is granted permission to be represented by a lawyer in this matter.

DEPUTY PRESIDENT

 1   CEPU & Ors v Northern SEQ at [14] [2016] FWC 4736

 2  ASC Pty Ltd v The Australian Workers’ Union; “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU); Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia[2014] FWC 544

 3 [2013] FCA 291

 4   New South Wales Bar Association v McAuliffe[2014] FWCFB 1663

 5 (1988) 165 CLR 543 at 556

 6   [2014] FWCFB 174

 7   [2011] FWAFB 5585

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