H v Centre

[2014] FWC 6128

[2014] FWC 6128

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.789FC - Application for an order to stop bullying

H
v
Centre and Others
(AB2014/1146)

COMMISSIONER WILSON MELBOURNE, 4 SEPTEMBER 2014

Application for an FWC order to stop bullying: permission for a party to be represented by a lawyer

[1] An application has been made by H to the Fair Work Commission for an Order to stop bullying which is alleged to have taken place in an employer I will refer to as the “Centre”, which is a corporate entity providing services to the community. The allegations of bullying extend to involve two named individuals, T (a co-worker) and I (the Centre’s Director).

[2] The matter has been the subject of a conciliation conference before me and the application is proceeding to an arbitration on 10 and 11 September 2014.

[3] The Applicant, H, is represented by her husband who is not a lawyer or otherwise skilled in workplace relations tribunal practices.

[4] The Centre seeks permission to be represented by a lawyer who will also represent, so far as they are professionally able, the two named individuals. This request for representation in the arbitration continues the representation that was granted to the Centre and the named individuals at the earlier conciliation stage of these proceedings.

[5] For the reasons which are set out below, I consider it appropriate in all the circumstances to grant permission to the Respondents to be represented by a lawyer in the forthcoming proceedings.

[6] By way of background, the Applicant has been employed by the Centre since mid-2010, and alleges bullying on the part of a co-worker, T, from 2010, with further bullying on the part of I, the Centre Director, who commenced employment in December 2013. It is also alleged that the Centre has either failed to have in place appropriate policies and procedures to deal with circumstances that arose; or failed to act in accordance with those policies and procedures; or denied the Applicant procedural fairness in the way that the Centre implemented those policies and procedures it did have. I discern the Applicant to argue that these failings are bullying within the meaning of the Fair Work Act 2009 (“the Act”). The Applicant has not been at work for some months.

[7] The Centre denies the allegations and contends that there was not bullying on the part of the co-worker, T, or the Director, I, and that such interactions as occurred between the two co-workers H and T did not, in all the circumstances amount to bullying. The Centre also contends that its contact with H about her performance was legitimate and that it was not only proper to raise issues of performance with her but consistent with the Centre’s duty of care to its clients.

[8] The arbitration will hear evidence from two witnesses on the part of the Applicant (one of whom will be the Applicant) and four on the part of the respondents (two of whom are the named individuals, T and I), as well as hearing submissions from the parties on the evidence received and the application of the Act to the circumstances of all. The Applicant will be assisted in these proceedings by an interpreter. There is significant contest between the parties as to the facts of what occurred, as well as what should be made of those facts, and determination of the matter will require weighing of evidence received. The Centre initially advanced a jurisdictional objection that it was not a constitutional corporation, however it withdrew that objection in the early stages of this matter, after the Commission drew the attention of the Respondent to the decision of Commissioner Hampton in Ms Kathleen McInnes 1, and advised that the approach taken in that matter to assessing whether the Centre was a trading corporation would be applied by me. The question of this, or any other jurisdictional objection has not been raised since, and accordingly I do not discern such issue to be part of the complexity to be dealt with in this matter.

[9] The arbitration has been set for two days and is expected by me to require at least the first day and probably most of the second.

[10] A request for representation by a lawyer is dealt with in s.596 of the Act, about which the Federal Court has held;

“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.” 2

[11] The same decision held that while the criteria set out in ss.596(2)(a)-(c) are conditions precedent for the making of a decision, there must then be an exercise of discretion on the part of the Commission. 3 That is, it is possible the conditions precedent have been met, however the Commission may still refuse an application for representation. It is also the case that nothing within s.596 interferes with the parties’ right to choose who their legal representative or paid agent will be if permission is granted.4

[12] The Respondents seek to be represented by counsel, Mr J.R.M Tracey, and put forward that he will be able to assist the efficient running of the matter, contending that in the absence of a grant of permission for representation to the Respondents, the matter is at risk of running over the time allowed given the number of witnesses to be called and what is said to be the complex factual and legal issues covering a period of four years. The Respondents also make the point that the Centre is a not-for-profit organisation with T and I being individuals. It is also argued that the Centre employs no one skilled in human resource management, although it is conceded a person on the Centre’s Board of Management has this experience. The Centre also put forward that the Board of Management comprises individuals who are also clients of the Centre and that while it could be said that one or other members of the Board of Management could represent them in these proceedings, being a representative in these proceedings might place them in a difficult position as they use the services of the Centre in the future.

[13] Mr Tracey also personally puts forward the submission that if he is to be granted permission he undertakes to assist the Commission in various regards including by limiting his cross examination of the Applicant to relevant matters; treating the Applicant politely and respectfully, and otherwise not taking unwarranted procedural or technical points or objections.

[14] The Applicant, through her husband, opposes a grant of permission. The submissions in this regard includes that the Commission’s Anti-bullying Benchbook identifies that a party to a matter before the FWC must normally appear on their own behalf. The Applicant also argues there is no significant degree of complexity in relation to this matter, and that the Applicant perceives the Respondent’s request to be represented by Counsel as being not so much due to the complexity of the matter but rather for the convenience of his clients.

[15] The Applicant also takes issue with some of the undertakings given by Mr Tracey about how he will conduct himself as the arbitration proceeds.

[16] In considering the file as a whole, I am satisfied that it is appropriate to grant permission for each of the Respondents to be represented by a lawyer.

[17] In particular, I am satisfied that, consistent with s.596(2)(a) of the Act, the appearance of Counsel in this matter will most likely allow the matter to be dealt with more efficiently taking into account the number of witnesses to be heard and the issues to be determined by the Commission.

[18] While I note the submission of the Respondents regarding whether or not a member of the Board of Management might be able to adequately represent the Centre in these proceedings, which is an argument that the criterion within s.596 (2) (b) is enlivened, I am not persuaded that such is the case. The conference conducted by me included attendance of a person who presently works as a lawyer, albeit that she was not in attendance at the conference in a professional capacity. I did not discern any particular discomfort or inability on her part to conduct either the conference then taking place or a hearing if she was called upon to be in such a role. I have no doubt that if I were not otherwise satisfied of reasons for the grant of representation by lawyer, that either she or another member of the Board of Management would be able to effectively represent the Centre in these proceedings. Likewise, having had the opportunity to meet both individual Respondents, I and T, I did not discern any inability on their part to represent themselves effectively should they be called upon to do so.

[19] For the reason that the Applicant is herself not represented by a lawyer or paid agent in these proceedings, consideration of the criterion in s.596(2)(c) does not arise in relation to the Respondent’s request, at least in relation to its own situation.

[20] I also do not consider that a grant of permission for representation to the Respondents creates an unfairness in respect of the Applicant. H is represented by her husband, who works in a profession and is proficient in English. The Applicant’s witness statements and submissions, including the submissions made in respect of representation, are the product of careful and meticulous research, are professionally laid out and well argued, making competent and appropriate references to evidence, legislation and case authorities. The Applicant, through her husband, also sought production of documents from the Respondent and these requests were also well drafted. I have no reason to believe that these documents were not drafted by the Applicant’s husband and on that belief do not consider that he or the Applicant will be at a disadvantage to the Respondents with a grant of permission by me to be represented by a lawyer.

[21] Taking into account the circumstances of the parties as well as the submissions that have been made by them in respect of representation, I propose to determine the matters that are the subject of this application by way of determinative conference, which will perhaps allow the issues to be dealt with more informally than would otherwise be the case. In planning for the determinative conference I will take into account, and will put into place, the provisions of the Commission’s Fair Hearings Practice Note 5 dealing with assistance by members to self represented parties. In this regard, the Fair Hearings Practice Note provides the following

“12. The Commission is obliged to perform its functions and exercise its powers in a manner that is fair, just and quick. An efficient dispute resolution service resolves disputes in a timely and appropriate way that minimises the costs incurred by the parties.

13. During proceedings Members have a responsibility to:

• listen to evidence;



• ask questions to clarify points that are unclear and to obtain information that is relevant to the considerations which the Member must take into account;



• manage the behaviour of advocates to ensure that all parties are treated with courtesy and respect;



• exclude irrelevant information;



• discourage repetition; and



• deal with each matter on its merits, in accordance with the relevant provisions of the Act.

14. Members are responsible for ensuring that proceedings are fair and that parties are treated with courtesy and respect. An important element of the fair hearing obligation is the duty to provide appropriate assistance to parties in the presentation of their case, in particular self-represented parties. This means that in some circumstances a Member has an obligation to intervene, both for the benefit of a self-represented party and more generally.

15. The assistance provided to self-represented parties by a Member may, depending on the circumstances, include: ◦explaining the relevant legislative provisions;

• identifying the issues which are central to the determination of the particular proceedings;



• assisting a party to conform with procedural and evidentiary rules designed to avoid unfairness;



• drawing a party's attention to the relative weight to be given to bar table statements as opposed to sworn evidence;



• offering a party an interpreter where it appears that this may assist that party to participate more fully in the proceeding;



• facilitating the fair, just and quick determination of the matter; and



• adjourning a proceeding in circumstances where it would be unfair to proceed.

16. Despite this obligation, the assistance a Member can properly provide to a self-represented party is limited. The Member must balance the interests of the parties who represent themselves with the need to:

• afford procedural fairness to other parties;



• ensure that proceedings are conducted efficiently and costs are kept to a minimum; and



• ensure that proceedings are conducted in a manner that is impartial and can be seen to be impartial.

All parties have the right to a fair and efficient hearing.”

[22] My understanding from the parties is that each has a preference for the proceeding to be dealt with as confidentially as is possible. While there is no automatic entitlement to the hearing to be conducted in that way, I am satisfied that it is appropriate to do so on this occasion, taking into account the personal situation both of the Applicant and the two individual Respondents, I and T. I do not consider that the preferences of the Centre itself would be a sufficient reason to consider confidentiality; nothing special or private arises in that regard in relation to a corporate entity, albeit one that is a community service, so far as these proceedings are concerned.

[23] Consistent with this, I consider it would be appropriate for me to consider making at the commencement of the arbitration on 10 September 2014, an order for confidentiality pursuant to the provisions of s.593(3) of the Act, with that order extending to all material and evidence provided in relation to this matter. Should any party wish to provide submissions about such prospect, they are to advise the Commission and the other parties no later than close of business on Friday, 5 September 2014 that they wish to do so and to provide a summary of their views.

[24] Finally, submissions provided to the Commission by solicitors for the Respondents on 27 May 2014 indicated that a representative from the Centre’s insurer may also be in attendance at the conference. The Respondent’s solicitors did not disclose the nature of the insurer or explain why they should attend the arbitration. Accordingly I decline the request, on the basis that the proceedings will be in the form of a determinative conference and will be restricted to the parties themselves, their support people and direct representatives.

COMMISSIONER

 1   [2014] FWC 1394

 2   Warrell v Walton [2013] FCA 291, (2013) 233 IR 335, at [24]

 3   Ibid

 4   NSW Bar Association v McAuliffe & Anor[2014] FWCFB 1663

 5   See by authority of the Commonwealth Government Printer

<Price code C, PR555073>