Jeanette McKinnon v Sue Blakey T/A Eventide Homes

[2013] FWC 4751

[2013] FWC 4751

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Jeanette McKinnon
v
Sue Blakey T/A Eventide Homes
(U2013/6757)

COMMISSIONER BISSETT MELBOURNE, 17 JULY 2013

Permission to be represented by a lawyer in accordance with s.596 of the Fair Work Act 2009.

[1] Jeanette McKinnon (the Applicant) has made an application for relief from unfair dismissal pursuant to s.394 of the Fair Work Act 2009 (the Act). She says she was dismissed from her employment with Eventide Homes (Stawell) Inc 1 (Eventide or the Respondent).

[2] The Respondent has raised a jurisdictional objection to the matter being heard on the grounds that the application is frivolous or vexatious and should be dismissed in accordance with s.587(1)(b) of the Act.

[3] The Respondent’s objection is listed for hearing in the Commission at Ballarat on 19 July 2013. The Respondent has indicated that it seeks permission to be represented by a lawyer in accordance with s.596 of the Act in the proceedings on 19 July and has asked that this application for permission be decided by the Commission prior to the hearing on 19 July.

[4] To facilitate a decision on this application I issued directions for the filing of brief written submissions of the Respondent and the Applicant.

[5] This decision deals only with the application for permission to be represented.

Legislative provisions

[6] The Act states that:

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 employersthat 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.

[7] In Warrell v Walton 2 Flick J found that:

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”.

[8] The decision to grant permission is therefore not merely a procedural step but one which requires consideration in accordance with the law as set out in s.596 of the Act.

[9] It is necessary, in determining if permission should be granted, that at least one of the conditions in s.596(2)(a), (b) and (c) be met. It is not necessary that all of the conditions be considered or met. The decision to grant permission is a discretionary decision that is only exercisable if at least one of the conditions is met.

[10] To the extent they are raised by the parties I have considered, , each of the matters in s.596(2)(a)-(c) in coming to my decision.

Submissions

The Respondent

[11] The Respondent filed written submissions in support of its application for permission to be represented. The Respondent relies on s.596(2)(a) and (b) in support if its application.

[12] The Respondent submits that the substantive matter involves ‘complex factual and legal considerations.’ The Commission, it says, will be required to determine if an agreement was reached between the parties and, if so, whether the pursuit of the unfair dismissal application by the Applicant is frivolous or vexatious.

[13] The Respondent submits that the legal principles as to whether a ‘valid accord and satisfaction’ has been reached and the case law surrounding this are complex. Further each of the parties intends to call evidence in support of their respective cases as to what occurred in conciliation.

[14] In addition the Respondent submits that Ms Blakey, the CEO of the Respondent, could not effectively represent the Respondent as she is a witness in the matter and is not a human resources practitioner with any experience of advocacy or in matters before the Commission. The Respondent has no in-house counsel or dedicated human resource officer.

[15] The Respondent submits that permission to appear will not bring with it any unnecessary formality of the kind referred to by his Honour in Warrell as the matters to be argued and the witness examination and cross examination will need to occur in any event.

The Applicant

[16] The Applicant argues that permission should not be granted to the Respondent to be represented by a lawyer. 3 She does so on the grounds that:

● The Respondent/Ms Blakey has already had legal assistance in making its submission on both the substantive matter and this matter and in the preparation of Ms Blakey’s witness statement;

● Legal representation will make the matter more complex;

● Ms Blakey is an educated and competent CEO running an establishment with over 100 residents and close to 100 staff. She is articulate and confident and is capable of representing herself (and presumably the Respondent);

● Ms Blakey has access to an external human resource and industrial advisor (Clare Downs – a consultant) and an internal HR employee (Joanne Cross) who could provide assistance and support;

● The Applicant would be placed in a disadvantageous and unequal position if permission is given. If Ms Blakey is not represented both she and the Applicant will be on the same footing;

● The matter is not complex and will only be bogged down in legal jargon and will become complicated if permission is granted;

● Any witness cross examination can be conducted by the Commissioner;

● The hearing will become unnecessarily formal if permission is granted.

Consideration

[17] I now turn to consider each of the matters under s.596 of the Act. Whilst the Respondent only relies on s.596(a) and (b) to ground its application I have considered s.596(c) to the extent that the Applicant deals with it in her submission.

(a) it would enable the matter to be dealt with more efficiently, taking into account the complexity of the matter

[18] The law surrounding when an agreement is made is well settled. What is perhaps more complex is the application of the law to the factual matrix of any particular case. The law recognises that an agreement may be reached in circumstances where this agreement may not yet be reduced to writing. 4 Further, such an agreement will extinguish the pre-existing cause of action with potential consequences for any continued prosecution of the dispute. The circumstances within which the alleged agreement is said to have been made may well represent a layer of complexity to the issue at hand.

[19] In this case it will be necessary for me to determine if an agreement was reached between the Applicant and Respondent in settlement of the matters between the parties. This must be decided based on the evidence of the parties as to what occurred at and following the conciliation.

[20] The Respondent submits that the matter involves complex facts and legal considerations. The Applicant says that the matter will only be made more complex by allowing representation.

[21] Without making any findings on the material submitted by the Applicant and the Respondent on the substantive matter it appears, from that material, that the issue to be determined goes to a determination of fact as to what occurred at the conciliation conference between the parties. There do not appear to be any complex legal issues to be determined by the Commission in deciding if any agreement was reached and if this agreement fully settles the unfair dismissal application.

[22] The disputed factual matters will ultimately be determined through the evidence of the parties as to what did occur at the conciliation. This will involve witness examination and cross examination. Contrary to the submissions of the Applicant it is not appropriate that the Commissioner undertakes this role. Given the breadth of evidentiary material it appears will be relied on just by the Respondent I am concerned that this material be properly addressed by the witnesses.

[23] Given the substantial factual dispute, the complexity of the witness material and the need to have this put to all witnesses, I consider that the matter would be more efficiently dealt with were the Respondent to be represented by a lawyer.

(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

[24] This provision does not require the Commission to consider the ability of the Respondent to represent itself effectively in comparison to the other party but the ability to do so in isolation of how others may be represented.

[25] In this case, was permission not granted, it appears that Ms Blakey, the CEO of the Respondent, would be required to represent the Respondent in the hearing. She would be required to undertake witness examination and cross examination and make submissions. She is also a witness in the proceedings. I observe however that it is not an unusual circumstance for a party in a matter before the Commission to be both a witness and advocate on their own behalf. Many unrepresented parties do so. It is not, of itself, grounds to grant permission to be represented.

[26] I note from the material filed by the Respondent that the CEO appears to be aware of the factual circumstances surrounding this case. It includes that the CEO was present at the conciliation and instructed the Respondent’s lawyers on matters associated with the case.

[27] It can be inferred that Ms Blakey is a competent person. She is the CEO of a reasonably sized establishment with around 100 staff. While she may not have dedicated human resource staff, she appears to have access to human resources staff within the organisation. There is nothing to suggest Ms Blakey is not capable of representing the Respondent effectively in the matter before the Commission. It would not be unfair for her to do so.

[28] That Ms Blakey has access to a human resources consultant is not relevant – to be represented by such a person would require exactly the same permission to be sought as is sought in this application. I also do not consider relevant to this issue the make-up of the Board of the Respondent. The Board members are not employees of the organisation and have responsibilities distinct from those of the CEO.

[29] In the circumstances I do not consider that it would be unfair not to allow representation

(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

[30] This provision requires a consideration of the circumstances of the Respondent in comparison to the Applicant as the other person in the matter. I deal with it to the extent that the Applicant relies on it to argue against the granting of permission. I note that the Respondent does not rely on this ground.

[31] In this case the Applicant is not represented. She will represent herself and it appears she has no legal qualifications. The Applicant will also be a witness in the matter and will need to cross examine witnesses for the Respondent.

[32] In this case where the Applicant is not represented it would not be unfair deny the Respondent the representation it seeks.

Conclusion

[33] Even though I have found that the legal issues do not appear complex, there is complexity in the factual dispute, particularly the witness material. There is a need to have issues of fact put to all witnesses.

[34] I do consider that the matter would be more efficiently dealt were the Respondent to be represented by a lawyer (as I would also find had the Applicant sought permission). The condition precedent for the exercise of my discretion has therefore been met. It does not automatically follow however that permission will be granted to the Respondent to be so represented.

[35] The Applicant has made a number of additional submissions that she says should counter the application by the Respondent to be represented in the proceedings. These are concerns relevantly considered in deciding if I should exercise my discretion to grant permission. These go to the assistance already afforded to the Respondent by legal representation in preparing its material, including the witness evidence, and an increase in the complexity that will flow if permission is granted.

[36] In reaching my decision I have taken into account all of the submissions made by the Applicant and Respondent.

[37] I acknowledge that, in the normal course of events, were permission not sought or granted, a party would represent itself. I am also mindful of the provisions of s.577 of the Act which states that, in performing its functions, the Commission must act in a manner that is fair and just; is informal and avoids unnecessary technicalities; and is open and transparent. The Commission should therefore avoid, wherever possible, taking actions or making a decision that might create unnecessary technicalities or that imposes unfairness.

[38] Attempting to get the balance right in the case has been difficult. On balance however and in the specific circumstances of this case I am persuaded that the determination of the facts in the matter will be assisted if permission is given to the Respondent to be represented by a lawyer. I have therefore determined to exercise my discretion and grant permission to the Respondent to be so represented.

[39] It is not my expectation that, in granting such permission, the proceedings will become complex or ‘bogged down in legal jargon’ in any way.

COMMISSIONER

Final written submissions:

Respondent, 10 July 2013.

Applicant, 15 July 2013.

 1   There is an issue to be resolved with respect to the proper name of the Respondent in the proceedings. The Respondent has given this name for itself whilst there is some confusion based on the original application. The matter will addressed in the substantive hearing.

 2 [2013] FCA 291.

 3   Whilst the Applicant’s submission argues that Ms Blakey, the CEO of the Respondent, should not be represented by a lawyer I have treated the submissions as if it relates to the application by the Respondent (and not Ms Blakey as a representative of the Respondent) that it be granted permission to be represented.

 4   Masters v Cameron (1954) 91 CLR 353

Printed by authority of the Commonwealth Government Printer

<Price code C, PR539000>