Emily Brown v Woolworths Group Limited - [2022] FWC 1728

[2022] FWC 1728

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Emily Brown
v

Woolworths Group Limited

(U2022/3299)

Chantelle Brown
v

Woolworths Group Limited

(U2022/3316)

DEPUTY PRESIDENT EASTON

SYDNEY, 5 JULY 2022

Application for an unfair dismissal remedy – section 596 – representation by lawyers and paid agents – permission to be represented granted.

On 18 March 2022 the Applicants made applications to the Fair Work Commission under s.394 of the Fair Work Act 2009 (Cth) for remedies, alleging that they had been unfairly dismissed from their employment with Woolworths Group Limited.

Woolworths Group Limited (“Woolworths”) has sought the permission of the Commission to be represented by a lawyer pursuant to s.596 of the Fair Work Act 2009 (Cth) (the FW Act). This decision deals only with Woolworths’ application.

Section 596 of the FW Act is relevantly 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.”

Woolworths relies on each of the subsections in s.596(2).

The following general principles can be drawn from earlier decisions of the Commission and of the Federal Court on permission to appear:

(a)the default position is that each party appears on their own behalf;[1]
(b)permission may be granted “only if” at least one of the requirements of s.596(2) are made out;
(c)the assessment of whether permission should be granted under s 596 involves a two-step process: firstly considering whether one or more of the criteria in s 596(2) is satisfied, and secondly considering whether the Commission’s discretion should be exercised in favour of the party seeking permission in all of the circumstances of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2022] FWC 1728
Decision Date: 5 JULY 2022

CaseChat Overview and Summary

In the case of Emily Brown and Chantelle Brown v Woolworths Group Limited, the applicants, who were dismissed from their employment, sought remedies for unfair dismissal under section 394 of the Fair Work Act 2009 (Cth). Woolworths, in turn, sought permission from the Fair Work Commission to be represented by a lawyer under section 596 of the Fair Work Act. The central issue in this decision was whether Woolworths should be granted permission to be represented by a lawyer in the proceedings. The Deputy President considered the relevance of section 596(2) of the Fair Work Act, which sets out the criteria for granting permission to be represented by a lawyer or a paid agent. The Deputy President concluded that the granting of permission would enable the matter to be dealt with more efficiently, taking into account the complexity of the matter. The Deputy President also considered the Applicants' submissions that any costs should be borne by Woolworths and that any requests for legal representation should be declined. However, the Deputy President found that it was not appropriate to impose conditions or restrictions on permission to appear, such as a condition that Woolworths should not apply for an order for costs.

As a result, the Deputy President granted Woolworths permission to be represented by a lawyer in these proceedings. This decision highlights the importance of considering the criteria set out in section 596(2) of the Fair Work Act when deciding whether to grant permission for a party to be represented by a lawyer or a paid agent. It also underscores the principle that the Fair Work Commission must perform its functions and exercise its powers in a manner that is fair and just, quick and informal, and avoids unnecessary technicalities. The granting of permission to be represented by a lawyer may fundamentally change the dynamics and manner in which a hearing is conducted, and therefore it is essential that the criteria set out in section 596(2) are carefully considered in each case.

Orders