Garry Hart v Truss Guard Rail Pty Ltd

[2016] FWC 3747

[2016] FWC 3747

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Garry Hart
v
Truss Guard Rail Pty Ltd
(U2016/6050)

COMMISSIONER RYAN MELBOURNE, 8 JUNE 2016

Application for relief from unfair dismissal.

[1] The Respondent has sought permission to be represented by a paid agent for the purposes of the hearing of the Applicant’s application for an extension of time. The Respondent seeks permission under s.596(2)(a) and (b).

[2] Section 596(2) provides as follows:

“596(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.”

[3] The starting point for any consideration of a request for permission to be represented is the Federal Court decision in Warrell v Walton 1 where Flick J said:

“[24] A decision to grant or refuse “permission” for a party to be represented by “a lawyer” pursuant to s 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 s 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 s 596(2) have been taken into account and considered. The constraints imposed by s 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 s 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 s 596(2): i.e., “FWA may grant permission...”. The satisfaction of any of the requirements set forth in s 596(2)(a) to (c) thus need not of itself dictate that the discretion is automatically to be exercised in favour of granting “permission”.”

[25] 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. The legislative desire for informality and a predisposition to parties not being represented by lawyers emerges, if not from the terms of s 596, from the terms of the Explanatory Memorandum to the Fair Work Bill 2008 (Cth)...”

[4] The Respondent in support of permission being granted under s.596(2)(a) contends that:

“5. The Respondent submitted a Form F3 Employer Response to Unfair Dismissal Application (“F3 Response”) on 8 June 2016 raising two jurisdictional objections being that the Application has been lodged out of time and that the business is a small business, and the dismissal was consistent with the Small Business Fair Dismissal Code. These jurisdictional objections add an element of complexity to the matter.

6. Jurisdictional objections are a nuance of this area of the law and are inherently complex by virtue of the fact that they are threshold matters decided within strict parameters of interpretation.

7. As Richards SDP stated in CEPU v UGL “Jurisdictional issues by their nature are prospectively complex, and may require a degree of familiarity with court and tribunal jurisprudence or authorities.”1 There, permission for the representative to appear was granted on this basis.

8. In addition to the inherent complexities posed by the jurisdictional objections raised, the Applicant and the Director of the Respondent, Simon Horseman (Mr. Horseman) have been long-time friends for over 25 years. This makes the matter particularly complex as there is substantial emotional investment from both parties in the matter. It is submitted that representation will assist the parties in narrowing the issues and minimising extraneous issues arising from this long standing relationship. For this reason, we submit that it would be more efficient with respect to both parties to allow the Respondent to be represented.

9. In light of the foregoing, we submit that permission for representation will enable the matter to be dealt with more efficiently, taking into account the complexity of the matter.”

[citations removed]

[5] In the context of the present matter there does not appear to be any real complexity in the matter. The cases being advanced by both parties have been clearly identified and stated through the written submissions and witness statements filed in accordance with directions issued by the Commission. It is not a complex matter when the issue before the Commission is whether there are exceptional circumstances which would permit the Commission to grant an extension of time to the Applicant. The written submission of the Respondent canvasses a number of relevant decisions on extensions of time. The issues raised by the Applicant and the Respondent in relation to an application for an extension of time are relatively straightforward and their determination does not involve novel issues of law.

[6] Given the lack of complexity surrounding the matters before the Commission any increase in efficiency in dealing with the matter which may flow from the presence of a paid agent as the representative of the Respondent would be marginal if at all. There is a very real prospect that the presence of a paid agent as the representative of the Respondent will lead to less efficient conduct of the proceedings.

[7] I note that the Respondent contends that a factor giving rise to a level of complexity is that the Respondent has raised the issue “that the business is a small business, and the dismissal was consistent with the Small Business Fair Dismissal Code.” Whether or not the business is a small business and whether or not the dismissal is consistent with the Small Business Fair Dismissal Code is not a matter before me and is not a matter which will be dealt with at the hearing. The hearing is specifically limited to determining whether or not an extension of time should be granted to the Applicant.

[8] The Commission is not satisfied that granting permission to the Respondent to be represented by a paid agent would enable the matter to be dealt with more efficiently, taking into account the complexity of the matter.

[9] The Respondent in support of permission being granted under s.596(2)(a) contends that:

“10. The Respondent is a small business with minimal knowledge and dealings with any matters outside of the scaffolding industry. Furthermore, this is the first instance where the Respondent has been faced with an employment law claim.

11. The Respondent further submits that representation will enable the matter to be dealt with more effectively as the Respondent does not possess the requisite legal knowledge or know-how to speak to the virtue of the jurisdictional objections in a way that leaves a striking impression.

12. Accordingly, the Respondent will be unable to represent itself effectively out of concern that the manner of its representation will not achieve an intended result or outcome.

13. For these reasons, permission for representation will enable the matter to be dealt with more effectively.”

[10] The issue posed by s.596(2)(b) is whether the party seeking permission to be represented is unable to represent itself effectively. The two words of importance in this provision are “unable” and “effectively”.

[11] The Macquarie Dictionary 6th edition defines “unable” as follows:

unable adj. not able (to do something); lacking ability or power (to do something); weak; impotent.

[12] The Macquarie Dictionary 6th edition defines “effective” as follows:

effective, adj. 1. serving to effect the purpose; producing the intended or expected result: effective measures; effective steps towards peace. 2. actually in effect: the law becomes effective at midnight. 3. producing a striking impression; striking: an effective picture. n. 4. a soldier or sailor fit for duty or active service. 5. the effective total of a military force. -effectively, adv

[13] The Oxford English Dictionary, 2nd edn, Volume III, defines ‘effectively’ as follows:

Effectively, adv
1. As a means of causing or producing
2. a. By a direct exercise of power. b. With regard to the effects. (chiefly Theol.) Obs
3. = In effect a. Actually, in fact (obs) b. Virtually, substantially.
4. So as to produce an effect. Often emphatically: With powerful effect; decisively, completely.
5. In a manner fit for service.

[14] It would appear that the plain meaning of the s.596(2)(b) is whether the party seeking permission to be represented is lacking ability or power to represent itself so as to produce the intended or expected result.

[15] I note that a decision of SDP Richards in CEPU v UGL Resources Pty Ltd (Project Aurora) at [16] and [17], and followed by Williams C in Oliveira et or v The Trustee for Clipper Pearls Unit Trust T/a Clipper Pearls P/L, sets a higher bar for being represented effectively but I am of the view that plain words of s.596(2)(b) do not require representation “that creates a “striking impression”, or which has an “impressive” effect or which is “powerful in effect”.

[16] Setting the bar so high for effective representation is a bar that most experienced industrial advocates and lawyers may find too high.

[17] However the question of whether the Respondent cannot represent itself effectively cannot be determined solely on the basis of a broad assertion by the Respondent as to their capacity or lack of it to represent themselves – and that is all that has been put to the Commission.

[18] The Commission has taken into account the resources available to the Respondent. The Commission notes that the Respondent has access to Employsure P/L which they have used to prepare their submissions and witness statements in this matter.

[19] It is important in the context of s.596(2)(b) that the effective case for the Applicant and the Respondent has already been made clear to the Commission through the material filed in accordance with the Directions issued by the Commission. In such circumstances it would appear that no unfairness is visited upon the Respondent if it is required to represent itself.

[20] To the extent that the Respondent relies on s.596(2)(b) the Commission is not satisfied on the material before the Commission that the Respondent is unable to represent itself effectively at the hearing.

[21] Having considered the Respondent’s application for permission to be represented by a paid agent I am not satisfied that any of the grounds raised under s.596(2)(a) or (b) are made out by the Respondent. Permission to be represented by a paid agent is denied to the Respondent.

COMMISSIONER

 1 [2013] FCA 291.

Printed by authority of the Commonwealth Government Printer

<Price code C, PR581416>