Jason Reihana, Chintankumar Patel and Blake Reilly v The Geo Group Australia Pty Ltd
[2017] FWC 4303
•30 AUGUST 2017
| [2017] FWC 4303 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Jason Reihana, Chintankumar Patel and Blake Reilly
v
The GEO Group Australia Pty Ltd
(U2014/5037, U2014/5490 and U2014/5711)
| COMMISSIONER CAMBRIDGE | SYDNEY, 30 AUGUST 2017 |
Termination of employment - representation by lawyers and paid agents.
This Decision involves three related applications for unfair dismissal remedy made pursuant to s. 394 of the Fair Work Act 2009 (the Act). The applications were respectively made by Jason Reihana, Chintankumar Patel and Blake Reilly (collectively, the applicants). The respondent employer is The GEO Group Australia Pty Ltd (the employer or GEO).
This Decision is made in respect to the discrete question as to whether the Fair Work Commission (the Commission) should grant permission for the employer, and by implication, one of the applicants, to be represented by lawyers or paid agents (the representation question).
These matters have a long history. The applications were filed in February and March 2014. On 6 February 2015, the Commission issued Orders which stayed proceedings in these matters pending the final determination of related criminal proceedings taken against the applicant in matter U2014/5495 (Mr Waterfall). The related criminal proceedings were finalised earlier this year and resulted in Mr Waterfall being convicted and sentenced to 5 years and 9 months imprisonment.
Mr Waterfall failed to comply with certain Directions made by the Commission, and he otherwise failed to pursue his application for unfair dismissal remedy with sufficient diligence. Consequently, the application in matter U2014/5495 was dismissed.
Each of the applicants has confirmed that they wish to further pursue their respective applications for unfair dismissal remedy. The employer has been represented by lawyers throughout the proceedings to date. Similarly, the applicant, Mr Patel, has been represented by lawyers during proceedings, and the applicant, Mr Reihana, was previously represented by lawyers, but he has subsequently determined to represent himself. The applicant, Mr Reilly, appears to have been unrepresented throughout proceedings.
Further Mention and Directions proceedings in these matters were held on 4 August 2017, at which time the applicant Mr Reihana appeared unrepresented, the applicant Mr Patel was represented by Mr S Ryan, solicitor, and the applicant Mr Reilly was unrepresented and he appeared via telephone. Mr K Brotherson, barrister, continued his appearance on behalf of the employer. The matters have been scheduled for concurrent Hearing/Conference on 30, 31 October, and 1 November 2017 in Sydney.
Two of the applicants, Mr Reihana and Mr Reilly, have formerly raised objection to the employer being represented by lawyers or paid agents. On 16 August 2017, the applicants, Mr Reihana and Mr Reilly, each sent separate written communications to the Commission which set out the basis for their respective opposition to the employer being granted permission to be represented by lawyers or paid agents.
On 24 August 2017, the employer provided written submissions together with a supporting affidavit of a Mr Casimir, in response to the objections raised by the applicants, Mr Reihana and Mr Reilly, in respect of the representation question, and in support of permission being granted for the employer to be represented by lawyers or paid agents. The representation question has been determined upon the documentary material which has been filed.
Consideration
The question of representation in proceedings before the Commission is governed by section 596 of the Act which is in the following terms:
“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.”
The legislative intentions underpinning s. 596 of the Act have been the subject of various Decisions of the Commission and of Fair Work Australia. Further, the approach to consideration of the representation question has been examined by way of Judicial Review in the (incorrectly named) Judgment of Warrell v Walton[1] (Warrell).
Subsection 596 (2) of the Act includes three factors which separately or in combination, provide basis upon which the Commission can grant permission for a lawyer or paid agent to represent a Party in proceedings such as the Hearing/Conference of a claim for unfair dismissal. The three factors which can be identified in paragraphs (a), (b) and (c) of subsection 596 (2), can be paraphrased as: (a) complexity/efficiency; (b) inability/effectively; and (c) fairness.
In these matters, two of the applicants, Mr Reihana and Mr Reilly, have provided separate written submissions stating that they object to the employer being granted permission for legal representation particularly because they were representing themselves, and that the employer was a large, well-resourced organisation. Further, the applicant, Mr Reilly, has asserted that the matters did not involve any particular complexity. The applicants, Mr Reihana and Mr Reilly, each submitted that it would be unfair to permit the employer to be legally represented, and these factors all operated to establish that the Commission should refuse permission for the employer to be represented by lawyers. Conversely, the employer has submitted that those factors found in subsections 596 (2) (a), (b) and (c) of the Act, respectively involving, complexity/efficiency, inability/effectively and fairness, operated to provide basis for the Commission to grant permission for the employer to be represented by lawyers or paid agents.
Complexity/Efficiency - Subsection 596 (2) (a)
The applicant, Mr Reilly, submitted that there was no major complexity in this instance, particularly because many of the facts regarding the assault were determined through the District Court case. However, the applicant, Mr Reilly, acknowledged that the matter may be regarded as somewhat complex because there were three applicants each with different circumstances. Therefore, the applicant, Mr Reilly, submitted that if complexity was established to represent a basis to grant legal representation, then he insisted that the cases be heard separately so as not to disadvantage any of the three applicants.
The employer submitted that the matters involved sufficient complexity such that their determination would be assisted by legal representatives. The complexity was asserted to arise from, inter alia, the substantial amount of evidentiary material that had been presented during the 16 days of Hearing of the related criminal proceedings. Further, the employer submitted that the same CCTV footage that was used in the related criminal proceedings would be relied upon by the employer in these proceedings. The employer submitted that the involvement of legal representation would assist with the various complexities that would arise and provide for the efficient Hearing of the applications.
Upon examination of all of the material which has been filed, and a consideration of any contests that are likely to arise from it, I am satisfied that these matters involve a level of complexity beyond that which would ordinarily be found in three, interrelated, unfair dismissal matters. The nature of the circumstances which underpin these proceedings must, on any objective analysis, be viewed to be anything but “commonplace”.
Inability/Effectively - Subsection 596 (2) (b)
The applicants, Mr Reihana and Mr Reilly, each submitted that the employer was a large and well-resourced organisation with dedicated and qualified HR and legal teams, who were more than capable of effectively representing the case on behalf of the employer. The applicants, Mr Reihana and Mr Reilly, made submissions which stressed that the resources of the employer greatly outweighed the resources available to themselves as unrepresented litigants. It was therefore submitted that to provide the employer with additional legal representation created a considerably more advantageous position for the employer.
The employer provided evidence and submissions regarding the size and current workload of the employer’s legal unit. The employer submitted that its legal team was comprised of only one legal practitioner, and its human resources staff were not trained or experienced in conducting arbitral proceedings in the Commission particularly of the nature of this matter. The employer submitted that in all the circumstances it would not be able to effectively represent itself in the particular circumstances of these matters.
Upon examination of the evidence and submissions made, I am not convinced that the employer could not effectively represent itself in the ordinary course of events. However, because of the complexity, and other unusual aspects of these matters including the related criminal proceedings, and the extensive delay that has occurred, I have been persuaded that in the particular circumstances of this case the employer would not be able to effectively represent its case without external legal assistance.
Fairness - Subsection 596 (2) (c)
The issue of fairness between the Parties is a matter of recognised significance. In this instance, the applicants, Mr Reihana and Mr Reilly, have made strong submissions which have asserted that as unrepresented litigants they would be unfairly disadvantaged if the Commission allowed the employer to be represented by, in this case, a barrister.
The applicants, Mr Reihana and Mr Reilly, each made submissions which strongly contended that a significant imbalance would be created whereby, as unrepresented, inexperienced, and untrained individuals, they would be appearing against an experienced lawyer. The applicants, Mr Reihana and Mr Reilly, each expressed concern that appearing in the proceedings against a barrister was intimidating and caused extreme angst and anxiety. It was asserted that this circumstance should be avoided, and permission for the employer to be represented should be refused so as to provide for a “level playing field.”
The submissions made on behalf of the employer asserted that unfairness would arise if the employer was denied an opportunity to be represented by the lawyer who was familiar with the matters. The employer submitted that at various points in the proceedings each of the three applicants had been legally represented. Further, the employer noted that on 14 October 2014, Commissioner McKenna granted permission for the Parties to be legally represented in the matter of Mr Patel (U2014/5490).
In this instance, I appreciate the perceived imbalance that would be created for the applicants, Mr Reihana and Mr Reilly, if permission for legal representation for the employer was granted. However, Mr Reihana was previously represented in proceedings, and Mr Reilly had indicated his intention to seek appropriate legal representation in a communication to the Commission dated 13 June 2014. Further, it is important to note that one of the three applicants, Mr Patel, has been legally represented throughout the proceedings.
Consequently, at different times during the proceedings the applicants have been represented or at the very least, in the case of Mr Reilly, expressed an intention to be represented. In these circumstances, the Commission has not been persuaded that there has been a proper or consistent basis upon which the applicants, Mr Reihana and Mr Reilly, could successfully advance argument that fairness between the Parties would be more appropriately served by refusing the representation question.
The Question of Costs
Both of the applicants, Mr Reihana and Mr Reilly, made submissions that urged that permission not been granted to the employer to be represented because costs applications had been foreshadowed against them in the event that they were not successful with their claims for unfair dismissal remedy. The applicants, Mr Reihana and Mr Reilly, submitted that the prospect that they may ultimately be Ordered to pay the employer’s costs was a factor that should persuade the Commission to refuse permission for legal representation.
It would not be appropriate for the Commission to contemplate any foreshadowed costs application as a matter relevant to consideration of the representation question. If any Party engages in a course of conduct that necessitates costs Orders to be made against them it would be improper for that Party to seek to act with immunity from such consequences.
Finally, the applicant Mr Reilly, insisted that the applications be heard separately in the event that permission was granted for the Parties to be represented by lawyers or paid agents. It appears that each of the three applicants will have divergent positions in support of their particular claim, and the particular circumstances of each individual can be clearly established as potentially at variance or even contrary to one another.
However, the absence of common pursuits and circumstances across the three applications would exist irrespective of the outcome of the representation question. Further, there is a significant amount of common evidentiary material that surrounds the circumstances which led to the dismissals of each of the applicants. Circumstances of this nature often involve the Commission dealing with a number of unfair dismissal applications in a single proceeding. It would be unnecessarily inconvenient and costly if this volume of evidentiary material had to be traversed in three separate Hearings. There is no basis to discern that the applicants would be disadvantaged or in any way restricted from the presentation of their individual circumstances, albeit adduced during the single set of proceedings.
In view of the conclusions that I have reached in respect of each of the relevant aspects of subsection 596 (2) of the Act, the permission sought by the employer to be represented by lawyers or paid agents is granted. Plainly, that permission is extended to any Party in the proceedings.
COMMISSIONER
Final written submissions:
Applicants (Jason Reihana and Blake Reilly): 16 August 2017.
Respondent: 24 August 2017.
[1] Warrell v Walton [2013] FCA 291.
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