Geoffrey Hines v WSH Group Pty Ltd T/A Watersun Homes

[2016] FWC 3489

[2016] FWC 3489

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Geoffrey Hines
v
WSH Group Pty Ltd T/A Watersun Homes
(U2016/3684)

Catherine Hines
v
WSH Group Pty Ltd T/A Watersun Homes
(U2016/3685)

COMMISSIONER RYAN MELBOURNE, 30 MAY 2016

Application for relief from unfair dismissal - representation refused.

Permission to be Represented

[1] Each of the Applicants and the Respondent have sought permission to be represented by a lawyer for the purposes of the hearing of the unfair dismissal applications of the Applicants. Each party seeks permission under s.596(2)(a), (b) and (c). Whilst the Commission has three separate applications for permission to be represented the Commission and each application will be determined separately, as a matter of convenience, I will jointly consider the issues raised by the three applications.

[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 Applicant’s in support of permission being granted under s.596(2)(a) contend that:

“4. Each application is subject to a jurisdictional objection. Based on the submissions and evidence filed by the parties, each application is likely to turn on the (separate, but related) questions of whether each of Mr and Mrs Hines were made redundant, whether their employment terminated as a consequence of such redundancy, and whether the circumstances give rise to “genuine redundancies” within the meaning of the Act.

5. These questions involve the intersection of statute and fact, understood in the context of the relevant case law. The questions of fact require the cross-examination of each of Watersun’s witnesses.

6. Should Mr and Mrs Hines not be permitted to be represented by a lawyer, the Commission is likely during the arbitration to be required to spend a great deal of time and energy to direct the parties’ focus away from the their subjective complaints of one another, and to the true questions in issue.

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

“5. The Respondent adopts paragraphs 4 and 5 of the Applicants’ submissions for permission to be represented dated 27 May 2016, save that the Respondent will need to spend considerable time cross-examining the Applicants.”

[6] In the context of the present matter there does not appear to be any real complexity in the matter. The cases being advanced by all 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 issues before the Commission are whether each of Mr and Mrs Hines were made redundant, whether their employment terminated as a consequence of such redundancy, and whether the circumstances give rise to “genuine redundancies” within the meaning of the Act. These issues are relatively straightforward and their determination does not involve novel issues of law.

[7] 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 legal representatives of the parties would be marginal, if at all. There is a very real prospect that the presence of legal representatives of the parties will lead to less efficient conduct of the proceedings.

[8] The Commission is not satisfied that granting permission to any of the parties would enable the matter to be dealt with more efficiently, taking into account the complexity of the matter.

[9] The Applicant’s in support of permission being granted under s.596(2)(b) contend that:

“s 596(b) Mr and Mrs Hines are not able to represent themselves effectively

7. Mr and Mrs Hines are both lay people with no legal skills, qualifications or experience; nor any experience in related fields (like, for example, human resources management or management generally). Mr Hines is a building site manager. Mrs Hines is a quality assurance officer in the building industry. They have no previous exposure to the processes and procedures of the Commission, nor any meaningful involvement in the industrial relations system.

8. Neither Mr or Mrs Hines have taken part in a hearing before, and are not equipped to lead evidence (which they would each be required to do from themselves), cross-examine or make submissions. Moreover, neither of them have any real understanding of the processes of the Commission or the applicable rules (including the rules relating to fairness).

9. Further, each of Mr and Mrs Hines are each their own primary witness. If permission is not granted, they would be required to fill the dual roles of witness and advocate during their of own cross-examinations. They would not be able to take notes or make objections (assuming (which the Commission should not) that they are equipped with an understanding of the circumstances in which objections may properly be made).”

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

“Effectiveness

6. The Respondent does not have any personnel who are experienced in presenting matters before the Commission. Mr McKeown has only recently assumed responsibility for the Respondent’s human resources, he is not familiar with the detailed provisions of the Act and has no experience in appearing before the Commission. He is also the primary witness for the Respondent. It would be unfair not to allow the Respondent to be represented as it is unable to represent itself effectively.”

[11] In many respects the position of the Applicants and the Respondent are similar in that neither of the Applicants nor the Respondent have expertise in advocacy before the Commission.

[12] In King v Patrick Projects P/L, 2 a Full Bench of the Commission said of s.596(2)(b):

“[18] With respect to fairness pursuant to s.596(2)(b) of the Act, the relevant test is not an assessment of the skills and education of the individual employer representative (Mr Burton), but rather it involves an examination of the resources available to the Respondent as a whole. In this matter, the Respondent Patricks Projects is a large organisation with considerable resources at its disposal. Having regard to the internal legal, human resources and other specialist personnel available to the Respondent, we do not consider that it would be unfair not to allow the Respondent to be legally represented.

[19] Moreover, the onus is on the Respondent to show that it is unable to represent itself. There was no evidence before the Commissioner that the well-resourced employer enterprise, Patrick projects, was unable to represent itself in the substantive proceedings. As such, the findings of the Commissioner were not open to him on the evidence.”

[13] Whilst the observations of the Full Bench in King v Patrick Projects P/L were made about an employer respondent the same observations are useful in considering the request for permission to be represented made by an employee applicant.

[14] 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”.

[15] 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.

[16] 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

[17] 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.

[18] 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.

[19] I note that a decision of SDP Richards in CEPU v UGL Resources Pty Ltd (Project Aurora) 3at [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,4  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”.

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

[21] However the question of whether each party in the present matter cannot represent itself effectively cannot be determined solely on the basis of a broad assertion by the parties as to their capacity or lack of it to represent themselves.

[22] The Commission has taken into account the resources available to the Respondent. The Commission notes that the Respondent does have at least one in-house HR or IR specialist. The Commission notes that each of the Applicant’s is a professional, although not qualified in HR, IR or law. Additionally, the all parties have access to legal representation which they have used to prepare their submissions and witness statements in this matter.

[23] To the extent that each party relies on s.596(2)(b) the Commission is not satisfied on the material before the Commission that any of the three parties in these matters is unable to represent itself effectively at the hearing.

[24] The Applicant’s in support of permission being granted under s.596(2)(c) contend that:

“s 596(c) Not granting permission would be unfair in the circumstances

10. It would be unfair not to allow Mr and Mrs Hines permission to be represented when one takes into account fairness between each of them (on the one hand) and Watersun (on the other).

11. Watersun is a large building and construction company with a dedicated executive management function. Mr and Mrs Hines are not aware of who will represent Watersun, but assume that it will be either an in-house lawyer or someone with industrial relations and advocacy experience.

12. If permission is granted to Mr and Mrs Hines, they each have no objection to Watersun also being given permission to be represented by a lawyer.”

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

“Fairness

7. The Applicants seek to be represented by experienced legal counsel. If permission is granted to the Applicants to be represented by legal counsel, it would be grossly unfair to the Respondent to be denied legal representation.

8. Of course, if permission is denied to the Applicants, the Respondent will not press its application for permission to be represented.”

[26] In the circumstances of the present matter where neither of the Applicants nor the Respondent is a professional IR advocate, but where each of the Applicants and
Mr McKeown from the Respondent are professionals, it is apparent that no unfairness will be visited upon either the Applicants or the Respondent if no one is represented by a lawyer.

[27] It is important in the context of s.596(2)(c) that the effective case for each 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 no unfairness is visited upon either Applicant if they are required to represent themselves and the Respondent is represented by an employee of the Respondent such as Mr McKeown.

[28] Having considered each of the three applications for permission to be represented by a lawyer I am not satisfied that any of the grounds raised under s.596(2) are made out by any of the three parties. Permission to be represented by a lawyer is denied to each of the two Applicants and to the Respondent.

COMMISSIONER

 1 [2013] FCA 291.

 2   [2015] FWCFB 2679.

 3   [2012] FWA 2966.

 4   [2014] FWC 4771.

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