Jessica Cummings v Bupa HI Pty Ltd
[2024] FWC 1391
•28 MAY 2024
| [2024] FWC 1391 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Jessica Cummings
v
Bupa HI Pty Ltd
(U2024/562)
| COMMISSIONER SIMPSON | BRISBANE, 28 MAY 2024 |
Application for an unfair dismissal remedy - Representation
On 16 January 2024, Jessica Cummings (the Applicant/Ms Cummings) applied to the Fair Work Commission (the Commission) under s.394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy, alleging she was unfairly dismissed from her employment with Bupa HI Pty Ltd (the Respondent).
The Respondent raised a jurisdictional objection on their Form F3 Employer Response that the Applicant was not dismissed. The matter is listed for Hearing of merits and the jurisdictional objection on 4 June 2024.
On 7 May 2024, the Respondent filed submissions on Representation. On this same day, the Applicant raised an objection to the Respondent being represented.
Respondent Submissions
The Respondent seeks permission to be represented by Counsel at any Conciliation Conference and the hearing of this matter.
The Respondent submitted that it is appropriate for the Commission to grant permission because, pursuant to s596(2)(a), having regard to the complexity of the matter, permitting the Respondent to be legally represented will enable the matter to be dealt with more efficiently. It was submitted Counsel would be able to assist the Commission in navigating how best to deal with the application particularly in the context of a jurisdictional objection.
In this regard, the Respondent cited a decision of Senior Deputy President Richards where it was observed in CEPU v UGL Resources Pty Ltd [2012] FWA 2966 that:
“[23] It appears to me that 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] In the situation currently before me, permission to appear for purposes of any jurisdictional considerations appears to me to be justified. That is, by granting permission for Mr Copeland to appear the efficiency with which the jurisdictional issue is dealt with would be assisted.
[25] It also appears to me that permission to appear in the substantive considerations should be granted to Mr Copeland for other reasons. Where jurisdiction is in question, it is important in any subsequent considerations to give close regard to the boundaries of the matters subject to the dispute and any proposed remedy. In such circumstances, a lawyer familiar with jurisdictional argument would ensure the matter would be dealt with more efficiently than would otherwise be the case.”
The Respondent submitted that Counsel has had extensive involvement in the preparation of evidence from the Respondent’s three witnesses and the preparation of detailed legal submissions. The Respondent submitted that the hearing will involve the cross-examination of the Applicant by the Respondent’s Counsel as well as an opportunity for the Applicant to cross-examine and the Respondent to re-examine three of the Respondent’s witnesses. It was further submitted that it will also involve submissions on the jurisdictional objection and on relevant authorities. The Respondent contended that it would not be an efficient use of resources to prevent the legal Counsel who have been so involved in the preparation of the matter to not represent her client at the hearing.
Further, it was submitted that legal representation will allow the Respondent's evidence and submissions in the proceeding to be articulated before the Commission in as cogent and precise a manner as possible, making the process more efficient and ensuring that the proceeding can be finalised expeditiously. It was submitted that this efficiency may manifest itself in the following ways:
(a)facilitating the making of concessions on fact and law, where appropriate;
(b)confining the cross-examination of the Applicant, and re-examination of the Respondent's witness to matters that are relevant and necessary;
(c)assisting the Commission by making focused and targeted submissions on the real issues for determination by the Commission; and
(d)allowing the Commission the benefit of obtaining further information or clarity on submissions filed on behalf of the parties from the substantive drafter of those submissions.
The Respondent contended that it is appropriate for such representation to be undertaken by Counsel, noting the involvement of Counsel at all stages in this matter and the efficiencies gained by allowing the client (who is directly briefing counsel) to focus their attention on the efficient running of the hearing.
For the reasons set out above, the Respondent submitted that the Commission should exercise its discretion to allow the Respondent to be legally represented in these proceedings.
Applicant’s Submissions
Complexity of the Matter
The Applicant submitted that while the Respondent argues that the matter is complex, it is essential to note that complexity alone does not warrant representation by legal counsel. The Applicant submitted that she is prepared to navigate the proceedings to the best of her abilities, and furthermore, the jurisdictional objection raised is not inherently complex and can be adequately addressed without legal representation.
Efficiency and Assistance to the Commission
It was submitted by the Applicant that while legal representation may aid in efficiency, it is crucial to ensure fairness between the parties. The Applicant submitted that granting representation to the Respondent may tilt the balance of the proceedings, especially considering the significant resources at the Respondent’s disposal. Additionally, it was submitted that the Commission has the expertise to manage jurisdictional objections and navigate the proceedings effectively without the need for external legal assistance.
Preparation and Involvement of Counsel
The Applicant submitted that while the Respondent’s legal counsel may have been extensively involved in the preparation of evidence and submissions, this does not automatically justify representation at the hearing. The Applicant submitted that she has prepared her case diligently without the assistance of legal counsel, and granting representation to the Respondent would create an unfair advantage.
Efficiency and Finalisation of the Proceedings
It was further submitted that while legal representation may expedite the process, it should not come at the expense of fairness and justice. The Applicant submitted that allowing the Respondent to be represented by legal counsel may streamline the proceedings for them but could potentially disadvantage the Applicant. The Applicant contended that it is essential to prioritise fairness and ensure that both parties have an equal opportunity to present their case.
Direct Briefing of Counsel
The Applicant submitted that while the Respondent argues that direct briefing of counsel allows them to focus on the efficient running of the hearing, it is important to consider the broader implications of granting representation. It was submitted that granting representation to the Respondent may create an imbalance in the proceedings, undermining the fairness and integrity of the process.
Additionally, the Applicant submitted that there is no evidence to suggest Bupa is unable to represent itself effectively, especially given its considerable size and HR support. It was submitted that granting representation to Bupa would create an unfair advantage and imbalance in the proceedings, thus contravening the principles of fairness and justice outlined in the legislation.
The Applicant submitted that she wished to draw the Commission’s attention to the provisions of Section 596 of the Act, which stipulate that permission for representation by a lawyer or paid agent may only be granted under specific circumstances. These circumstances include situations where representation would enable the matter to be dealt with more efficiently, where it would be unfair not to allow representation due to the inability of the person to represent themselves effectively, or where fairness between parties necessitates representation.
The Applicant contended that the matter at hand does not meet any of these criteria. Firstly, the Applicant submitted that the jurisdictional objection raised is not of a complex nature and is codified in section 389 of the Act. Additionally, the Applicant submitted that she is a self-represented litigant with no relevant skills, experience, or qualifications pertinent to the proceedings. The Applicant submitted she is fully committed to presenting her case effectively to the best of her abilities. The Applicant contended that granting representation to the Respondent, Bupa, who is of considerable size and resources, while she, the Applicant, lack relevant expertise, would create an unfair advantage and undermine the fairness of the proceedings.
The Applicant submitted that the decision to grant permission for representation is not a procedural step but a crucial aspect of ensuring fairness and justice in the proceedings. The Applicant submitted it is evident from the legislative intent and relevant case law that representation by lawyers should be the exception rather than the norm, and should only be permitted in specific circumstances outlined in the legislation.
Consideration
This case involves a jurisdictional issue raising questions of fact and law and the matter does involve some complexity.
As the Full Bench of the Australian Industrial Relations Commission observed in Doumit v ABB Engineering Construction Pty Ltd,[1]the line distinguishing conduct that leaves an employee no real choice but to resign from an employee resigning at their own initiative is a narrow one. The line, however, must be ‘closely drawn and rigorously observed’.
I have considered the submissions of the Applicant including that it would be unfair for the Respondent to be granted leave given they are a large employer, and the Applicant is self-represented. The legal representative has a duty to the Commission to assist it. The Commission is required to ensure the Applicant is not unfairly disadvantaged by the granting of leave to the other party. I am satisfied the Respondent has met the requirement in section 596(2)(a) as I am satisfied having a legal representative involved in the case who is familiar with the relevant questions in a jurisdictional dispute of this nature will assist in the matter being conducted more efficiently than otherwise may be the case.
I am satisfied that the countervailing considerations that may tell against the grant of leave can be adequately managed, and in the exercise of my discretion I have determined to grant leave to the Respondent to be represented.
COMMISSIONER
[1] Print N6999 (AIRCFB, Munro J, Duncan DP, Merriman C, 9 December 1996).
Printed by authority of the Commonwealth Government Printer
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