Jake Johansen v J H Lever & Associates Pty Ltd

[2019] FWC 2491

[2019] FWC 2491

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
Section 394 - Application for unfair dismissal remedy

Jake Johansen
v
J H Lever & Associates Pty Ltd
(U2019/698)

DEPUTY PRESIDENT ANDERSON ADELAIDE, 11 APRIL 2019

Application for an unfair dismissal remedy – representation – jurisdictional issue – complexity – fairness – permission granted

[1] Mr Jake Johansen (Mr Johansen or the Applicant) has applied to the Fair Work Commission (the Commission) under section 394 of the Fair Work Act 2009 (the FW Act) for an unfair dismissal remedy in relation to his dismissal by J H Lever & Associates Pty Ltd (Lever & Associates, the employer or the Respondent). He claims to have been unfairly dismissed on 18 January 2019 (the employer claims dismissal occurred on 20 January 2019).

[2] Lever & Associates oppose the application and raise a jurisdictional issue. It asserts that Mr Johansen was not a person protected from unfair dismissal under the FW Act because he had not completed the minimum employment period required by sections 382(a) and 383 of that Act.

[3] On 25 February 2019 conciliation of the application was conducted by a Commission-appointed conciliator. It was not resolved. It was referred to me for hearing and determination.

[4] On 13 March 2019 I directed that the jurisdictional issue be dealt with at a telephone hearing scheduled for 17 April 2019. I directed Mr Johansen and Lever & Associates to file in advance materials on the minimum employment period issue. I have received those materials.

[5] My directions required any party seeking to be represented at the hearing of this matter to request permission in writing. Lever & Associates seeks permission to be represented by a legal practitioner under section 596 of the FW Act.

[6] Lever & Associates’ request for permission is opposed by Mr Johansen

[7] This decision concerns the issue of representation at the jurisdictional hearing, and whether Lever & Associates is granted permission to be so represented.

The Facts

[8] The facts relevant to the issue of representation are generally not in dispute (facts relevant to other matters are in dispute).

[9] Lever & Associates is a small privately owned manufacturing business. It says it employs approximately seven persons. It has an office manager who it says has only recently been employed and is not versed in industrial or legal matters.

[10] Mr Johansen is a young man who, at the time of dismissal was a full time Production Coordinator in the business. He filed his application under his own hand. He is currently represented by his father. He says that neither he nor his father have legal qualifications or expertise in industrial matters nor association with industrial organisations.

[11] In order to be protected from unfair dismissal under the FW Act, the minimum employment period required to have been worked by an employee in a small business (as defined) is one year.

[12] Both parties agree that Mr Johansen first worked with Lever & Associates on 7 December 2017 (then, as a casual employee). The jurisdictional issue appears to be primarily concerned with whether a period of approximately 76 days in 2018 when Mr Johansen was not offered work by Lever & Associates should (or should not) be counted for the purposes of the minimum employment period.

[13] Witness evidence has been submitted in support of the competing jurisdictional contentions. The employer has filed a statutory declaration of its director Mr Roland Lever. Mr Johansen has filed a witness statement in his name and also a statement of Terri-Lee Johansen.

The Legal Principles

[14] Section 596 of the FW Act provides as follows:

“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.

(3) The FWC’s permission is not required for a person to be represented by a lawyer or paid agent in making a written submission under Part 2 3 or 2 6 (which deal with modern awards and minimum wages).

(4) For the purposes of this section, a person is taken not to be represented by a lawyer or paid agent if the lawyer or paid agent:

(a) is an employee or officer of the person; or

(b) is an employee or officer of:

(i) an organisation; or

(ii) an association of employers that is not registered under the Registered Organisations Act; or

(iii) a peak council; or

(iv) a bargaining representative;

that is representing the person; or

(c) is a bargaining representative.”

[15] The granting of permission under section 596 involves a two-step process. The first is that at least one criteria in section 596(2) needs to be satisfied. The consideration required by this first step “involves the making of an evaluative judgment akin to the exercise of discretion”. 1  The second is that the discretion must be exercised in favour of the applicant for permission2 in the sense that the discretion concerns whether to grant permission, not whether to deny or withdraw an established right.

The Submissions

[16] Lever & Associates says that the jurisdictional issue adds legal complexity to the proceedings. Lever & Associates also says that its office manager would not be able to effectively represent it on the jurisdictional issue or in the proceedings generally.

[17] Mr Johansen opposes the request on multiple grounds. He says that the default position in proceedings before the Commission is that parties normally represent themselves. He says that the jurisdictional issue is not complex as facts drawn from the employer’s time and wage books are not in dispute. He says that Mr Lever is the owner and would be able to represent the employer because he has extensive experience in his business including negotiating complex contractual and legal matters, and has had a previous unfair dismissal claim by a former employee. He says that it would be unfair if the employer had a legal representative given that he and his father are not lawyers nor experienced in industrial matters.

Consideration

[18] Lever & Associates can only be represented by a lawyer (or paid agent) at the hearing with permission of the Commission. 3

[19] Whether to grant permission is a discretionary matter made having regard to the factors set out in section 596(2) of the FW Act: efficiency (in the context of the complexity of the matter); fairness (in the context of the capacity of the person seeking permission to effectively represent themselves); and fairness between the parties.

[20] I agree with Mr Johansen that the starting point for the exercise of the discretion is that granting permission should be seen as a departure from the default position that a party in proceedings before the Commission must normally appear on its own behalf. This proposition is consistent with the statutory scheme:

“FWA is intended to operate efficiently and informally and, where appropriate, in a non-adversarial manner. Persons dealing with FWA would generally represent themselves.” 4 

[21] I now turn to the considerations in section 596(2).

Section 596(2) Efficiency

[22] As a general proposition, an application which raises substantive jurisdictional issues involves an additional degree of complexity. Even where facts associated with a jurisdictional issue are simple or not contested, determining that question is a legal matter.

[23] I agree with the general observation of the Commission in CEPU v UGL Resources Pty Ltd where it was said: 5 

“…where the Respondent (in this case) seeks to agitate a jurisdictional issue then it would follow that representation by a lawyer would be a reasonable course. Jurisdictional issues by their nature are prospectively complex in their own right, and/or else may require a degree of familiarity with court and tribunal jurisprudence or authorities.”

[24] Although the working pattern and roles undertaken by Mr Johansen between December 2017 and January 2019 may not be in material dispute, the question whether Mr Johansen’s casual employment was on a regular and systematic basis or whether he “had a reasonable expectation of continuing employment by the employer on a regular and systematic basis” 6 during the 76 day break in rostered work is in issue. Mr Johansen’s submission on representation indicates that his “state of mind and conversations with responsible officers of the Respondent” are relevant to his case. This is likely to be the subject of evidence, which the parties have the right to test.

[25] Resolving the jurisdictional issue involves mixed questions of fact and law. It is not complexity at the higher end of the scale but it is complexity of a moderate nature, nonetheless.

[26] I am satisfied that this matter raises a sufficient level of complexity such that the jurisdictional proceeding would be more efficiently determined with a legal representative representing one or both parties.

[27] I conclude that section 596(2)(a) is made out. Granting permission for Lever & Associates to be represented by a lawyer in these proceedings would enable the jurisdictional matter listed for hearing to be dealt with more efficiently, taking into account complexity.

Sections 596(2)(b) and (c) – Fairness

[28] The fact that sub-section (1) of section 596 is made out does not compel the exercise of discretion in favour of the person requesting permission. 7 All factors in the section need to be considered, including fairness (although not all need to be made out). Sub-sections 596(2)(b) and (c) require fairness to be considered in two contexts: fairness in the context of the capacity of the person seeking permission to effectively represent themselves; and fairness between the parties.

[29] If permission is not granted, Lever & Associates is likely to still be represented (perhaps by the office manager or Mr Lever himself). However, as a small business without a dedicated human resource specialist or internal legal resource that representation may not be effective given: neither have legal or industrial expertise on the jurisdictional issue.

[30] Having regard to the overall circumstances, I find that internal Lever & Associates officers would be unlikely to “effectively” represent the employer in the true sense of the word.

[31] I conclude that it would be unfair not to allow Lever & Associates permission to represent itself effectively.

[32] I now turn to sub-clause 596(2)(c) of section 596. This sub-section requires the Commission to take into account fairness between the person seeking permission (Lever & Associates) and other persons in the matter (Mr Johansen). This consideration does not support Lever & Associates’ request and is not made out.

[33] Mr Johansen is not legally qualified and has no background or expertise in industrial or legal matters. He is simply a lay person seeking to exercise his unfair dismissal rights. His claim is genuinely advanced, his grievance clearly laid out and he has the right to have his application fairly dealt with. He has a representative (his father) and in that sense does not have to be both witness and advocate, but his father also has no industrial or legal background.

[34] A consequence of granting permission would be that the employer would be legally represented but the Applicant, not having sought permission to be represented by a legal practitioner, would be represented by a lay family member. This may create some perception or apprehension of disadvantage.

[35] Having regard to fairness between the parties, it would not be unfair to refuse the employer’s request.

Conclusion

[36] The considerations of efficiency in the proceedings and effective representation by the employer weigh towards a grant of permission under section 596.

[37] The issue of fairness between the parties weighs against such a grant.

[38] In exercising the discretion each factor in section 596(2) does not have to be made out although each should be considered.

[39] On balance, I am satisfied that permission should be granted particularly having regard to the fact that Lever & Associates is a small business and the hearing is a jurisdictional hearing considering mixed issues of fact and law.

[40] However, I will impose conditions on the grant of permission that take into account fairness between the parties and minimise the impact on the dynamics of the proceeding. They are:

1. Should it be necessary, I will, consistent with my independent role as a statutory decision-maker, intervene directly during the jurisdictional hearing and provide an appropriate level of guidance to Mr Johansen and to his father on the conduct of proceedings and the taking and testing of evidence, so as to be satisfied that he is able to understand the issues, present his case and test that of the employer; and

2. Should circumstances alter or if I form the view that the employer’s legal representative is not contributing to the efficient or fair conduct of proceedings, I will consider whether the grant of permission should be revoked.

[41] This decision concerns the jurisdictional hearing only. Should Mr Johansen’s claim proceed beyond the jurisdictional issue to a hearing on merits and remedy the employer, or any party for that matter, seeking into be represented by a legal practitioner would need to make a fresh request under section 596 of the FW Act. That would then be determined on the facts and circumstances as then applying.

[42] Mr Johansen’s application remains listed for hearing of the jurisdictional issue (minimum employment period) on 17 April 2019, as set out in my directions of 13 March. All persons who have had witness statements filed in their name need to be present at the hearing to bring their statements into evidence, to be available for cross examination and to answer any questions the Commission may pose.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

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 1   Asciano Services Pty Ltd v Hadfield[2015] FWCFB 2618 at [19]

 2   Calleri v Swinburne University of Technology[2017] FWCFB 4187 at [36]

 3 Section 596(4) does not apply in this matter

 4   Explanatory Memorandum to the Fair Work Bill 2008 at paragraph 2291

 5   [2012] FWA 2966 at [23]

 6 Section 384(2)(a) FW Act

 7   Warrell v Fair Work Australia [2013] FCA 291 at [24]