Joshua Findley v Diamond Protection Pty Ltd T/A Diamond Protection

[2015] FWC 8645

[2015] FWC 8645 [Note: An appeal pursuant to s.604 (C2016/2001) was lodged against this decision - refer to Full Bench decision dated 26 February 2016 [[2016] FWCFB 1066] for result of appeal.]

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Joshua Findley
v
Diamond Protection Pty Ltd T/A Diamond Protection
(U2015/12391)

COMMISSIONER RYAN MELBOURNE, 14 DECEMBER 2015

Application for relief from unfair dismissal - permission granted.

[1] The Respondent has sought permission to be represented by a lawyer or paid agent at a hearing to deal with a jurisdictional challenge to the Applicant’s unfair dismissal application.

[2] Both the Applicant and the Respondent have filed written submissions in relation to the Respondent’s request for permission to be represented. In addition at a telephone mention of this matter on 14 December 2015 the Applicant made further brief oral submissions in opposition to the Respondent’s request for permission to be represented. I have considered all of the submissions made by both parties.

[3] Representation by lawyers or paid agents is dealt with in s.596 of the Act 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.”

[4] The proper approach to the application of s.596 was discussed as follows by the Federal Court (Flick J) in In Warrell v Walton: 1

“[24] 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”.”

[25] The appearance of lawyers to represent the interests of parties to a hearing runs the very real risk that what was intended by the legislature to be an informal procedure will be burdened by unnecessary formality. The legislative desire for informality and a predisposition to parties not being represented by lawyers emerges, if not from the terms of s 596, from the terms of the Explanatory Memorandum to the Fair Work Bill 2008 (Cth)...”

[5] In the present matter the Respondent relies on paragraphs 596(2)(a) and (c) for seeking permission to be represented by a lawyer or paid agent.

[6] The matter raised by s.596(2)(a) requires that the Commission consider both the complexity of the matter and any efficiencies which may flow from having a party represented. This issue was considered by a Full Bench in Singh v Metro Trains Melbourne 2which said:

“…….(2) Ms Singh’s contention that her case was not complex implicitly involved the proposition that a finding of complexity was necessary in order for the criterion in s.596(2)(a) to be satisfied. This is not the case. Certainly the provision requires the complexity of the matter to be taken into account. That means the consideration of complexity must be treated as a matter of significance in the process of determining whether the criterion is satisfied.  But ultimately the issue under s.596(2)(a) is whether the grant of permission would enable the matter to be dealt with more efficiently. There will be circumstances where permission for legal representation may enable a matter to be dealt with more efficiently even though it is not particularly complex; for example, an appeal may be dealt with more efficiently by granting permission to allow the legal representatives who appeared in the matter at first instance to also appear in the appeal. Therefore the characterisation of a matter as not being complex does not itself necessarily mean that the s.596(2)(a) consideration is incapable of satisfaction.”

[7] The level of complexity of the jurisdictional matters that must be considered and determined by the Commission are not particularly complex. However, given all of the circumstances of the matter I am of the strong view that having the Respondent represented by a lawyer or paid agent will enable the matter to be dealt with more efficiently than if the Respondent is not so represented.

[8] The Respondent also relies on s.596(2)(c) in seeking permission to be represented. The Applicant opposes a grant of permission under s.596(2)(c) on the basis that it would be unfair to the Applicant to allow the Respondent to be represented. The operation of s.596(2)(c) was considered by a Full Bench in Oratis v Melbourne Business School, 3 said:

“Section 596(2)(c) is one of the jurisdictional bases upon which permission for representation might be granted; it is not a ground requiring refusal of permission.”

[9] In the circumstances of the present matter where the Applicant is not a lawyer I am not satisfied that it would be unfair to the Respondent to deny the Respondent permission to be represented.

[10] I need be satisfied as to the satisfaction of only one of the three elements in s.596(2) before I can exercise a discretion to grant permission for a party to be represented. However, being satisfied as to one of the three elements of s.596(2) does not mean that permission must be granted. A discretion lies with the Commission to either grant or not grant permission for a party to be represented.

[11] The Applicant, whilst not a lawyer, has shown that he has a reasonably clear understanding of the issues to be addressed by the Commission and although the Applicant is without any training or experience in industrial advocacy he is clearly highly articulate. The real efficiencies which will flow from having the Respondent represented are sufficient to warrant the Commission exercising its discretion to grant permission to the Respondent to be represented by a lawyer or paid agent.

[12] Permission is granted to the Respondent to be represented by a lawyer or paid agent in the hearing of the jurisdictional challenges to the Applicant’s unfair dismissal application.

COMMISSIONER

 1 [2013] FCA 291.

 2   [2015]FWCFB 3502 at [16].

 3   [2014] FWCFB 3869 at [10].

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