Jane Massey v Brighter Access Ltd - [2024] FWCFB 353

[2024] FWCFB 353

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.596 – Representation by lawyers and paid agents

Jane Massey & Ors

Brighter Access Ltd & Ors

(U2023/12620 & Ors)

DEPUTY PRESIDENT WRIGHT
DEPUTY PRESIDENT SLEVIN
COMMISSIONER CRAWFORD

SYDNEY, 23 AUGUST 2024

Various Industries

Applications under section 596 for representation by lawyers and paid agents – 46 applications to be represented by paid agent in dismissal matters lodged pursuant to s.365 and s.394. Whether conduct of nominated paid agent a factor in exercising the discretion under s. 596. Conduct of paid agent in past matters and in the matters under consideration found to be relevant factors. Permission to be represented not granted.

Introduction & Background

Forty-six matters have been referred to us to deal with the question of whether the applicant in each of those matters should be granted permission to be represented by Employee Claims Pty Ltd t/a Employee Dismissals (ED). Each application is brought under the Fair Work Act 2009 (FW Act). Of those, 16 are applications brought under the general protections provisions pursuant to s.365 and 30 are brought under the unfair dismissal provisions pursuant to s.394 of the FW Act. The reference arises from the conduct of ED in another matter where ED was granted permission to represent an employee who challenged his dismissal under s. 365 of the FW Act.

This unusual task arises from a Statement of the President issued on 21 February 2024 in Samuel Howell v Elite Elevators[1] (President’s Statement) which required us to determine two matters. The first, whether a certificate should issue pursuant to s.368 of the FW Act in the dispute between Mr Howell and Elite Elevators Pty Ltd over whether Mr Howell was dismissed in contravention of Part 3-1 of the FW Act. That matter was subsequently settled, and no certificate is required. The second matter was whether permission should be granted for ED to appear as a paid agent on behalf of the applicant pursuant to s.596 of the FW Act in respect of any proceedings filed since February 2024 which identify ED as the applicant’s representative. This decision deals with that matter.

A decision of a Full Bench of the Commission in Howell v Elite Elevators[2023] FWCFB 265 sets out the background to Mr Howell’s matter. Put briefly, Mr Howell’s application disputing his dismissal by Elite Elevators Pty Ltd (Elite Elevators) and filed by ED, identified ED as Mr. Howell's paid agent. ED represented Mr Howell in a private conference before the Commission during which a settlement was reached. The settlement required the payment of an amount of $2,692 in compensation. That amount was paid to ED. Mr Howell did not receive any of the compensation and instead was issued an invoice from ED for $4,490. ED later filed a notice of discontinuance on Mr Howell’s behalf. After an exchange of correspondence where Mr Howell complained to the Commissioner who conducted the conference that he had not received the settlement…

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: [2024] FWCFB 353
Decision Date: 23 AUGUST 2024

CaseChat Overview and Summary

The applicants in 46 matters sought permission to be represented by the paid agent Employee Dismissals Pty Ltd t/a Employee Claims (ED). The matters arose from the conduct of ED in representing an employee in another matter where ED was granted permission to represent the employee who challenged his dismissal. The Full Bench of the Fair Work Commission had found ED's conduct to be misleading and unethical, and that it had not acted in the best interests of the employee. The Full Bench made a recommendation that ED should reimburse the employer the settlement sum it had received and that the employer should remit the settlement sum to the employee. Following non-compliance with that recommendation, the President of the Fair Work Commission made a statement referring all matters filed under s.365 and s.394 of the Fair Work Act that identified ED as a representative to the Full Bench of the Commission to determine whether permission should be granted for any of the applicants to be represented by ED. The Full Bench found that the conduct of ED in the matters before it was of a similar nature to the conduct found to be problematic in the earlier matter and found that it would not be appropriate to grant permission for any of the applicants to be represented by ED.

Orders