Kagura Games LLC v Tabitha Dickerson
[2025] FWCFB 225
•1 OCTOBER 2025
| [2025] FWCFB 225 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.604 - Appeal of decisions
Kagura Games LLC
v
Tabitha Dickerson
(C2025/8169)
| VICE PRESIDENT GIBIAN | SYDNEY, 1 OCTOBER 2025 |
Permission to be represented – Appeal against decision [2025] FWC 2219 of Deputy President Slevin on 1 August 2025 in matter number U2025/2317 – Respondent opposes grant of permission to be represented – s 596 of the Fair Work Act 2009 (Cth) – Permission granted.
Kagura Games LLC seeks permission to appeal and to appeal from the decision of Deputy President Slevin in Dickerson v Kagura Games LLC[2025] FWC 2219. The decision concerned an unfair dismissal application made by Tabitha Dickerson under s 394 of the Fair Work Act 2009 (Cth) (the Act). During these proceedings, Kagura submitted that Ms Dickerson was not an employee and, accordingly, that Ms Dickerson could not make an unfair dismissal application. The Deputy President found that Ms Dickerson was an employee and that her dismissal had been harsh, unjust and unreasonable. The Deputy President ordered that she be reinstated with continuity of service and backpay.
The appeal is listed for hearing on Wednesday, 15 October 2025. Kagura seeks permission under s 596 of the Act to be represented by Peter Healey of counsel instructed by Cameron Rogers of Cam Rogers Legal in relation to the appeal. Ms Dickerson opposes permission being granted. Both parties filed written submissions in support of their respective positions as to whether Kagura should be permitted to be legally represented.
The Legislative Framework
The circumstances in which the Commission may grant permission for a party to be represented by a lawyer or paid agent in a matter before the Commission are set out at s 596 of the Act. The section provides the following:
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.
The Full Bench in Roberts v TasTAFE[2024] FWCFB 449, summarised the principles to be applied in the exercise of the discretion to grant permission for representation and the effect of this provision as follows (at [4]-[5]):
As will be apparent, s 596(1) dictates that a person may be represented in a matter before the Commission by a lawyer or paid agent only with the permission of the Commission. Section 596(2) constrains the discretion of the Commission to grant permission for a person to be represented by a lawyer or paid agent. The Commission may grant permission “only if” one of the circumstances in at least one of subparagraph (a), (b) or (c) exist. Even if one of those requirements is satisfied, the Commission must then exercise a discretion as to whether permission should be granted.
In Lee v Superior Wood Pty Ltd[2020] FWCFB 1301; (2020) 295 IR 242, the Full Bench explained the approach to be adopted when determining if permission to be represented should be granted in the following terms (at [25]):
As a result, in applying the approach set out above the assessment of whether permission should be granted under s 596 potentially involves a two-step process. The first is consideration as to whether one or more of the criteria in s 596(2) is satisfied. The consideration required by this first step “involves the making of an evaluative judgment akin to the exercise of discretion”. It is only where the first step is satisfied that the second step arises, and involves a consideration as to whether in all of the circumstances the discretion created should be exercised in favour of the party seeking permission.
Kagura’s written submissions rely on the ground set out in s 596(2)(a) of the Act, that permission should be granted to enable the matter to be dealt with efficiently, taking into account the complexity of the issues in dispute. Ms Dickerson submits that permission should be refused in circumstances where the legal and factual issues in dispute are not of such a level of complexity to warrant permission to be granted, and where she does not have legal representation. Ms Dickerson states that there would be an imbalance and disadvantage to her, if Kagura is permitted to have legal representation.
Consideration
The Full Bench has decided to grant Kagura permission to be represented by a lawyer. We are satisfied that granting permission for Kagura to be represented will enable the matter to be dealt with more efficiently for the purposes of s 596(2)(a) having taken into account the complexity of the matter.
The appeal raises questions of law of significance to the Commission’s jurisdiction and of potential complexity. That includes consideration of the operation of the transitional provisions associated with the introduction of s 15AA into the Act in the context of the minimum employment period for the purposes of an unfair dismissal application. This question has not previously been considered by a Full Bench of the Commission. The appeal will also require consideration of the approach of the majority of the High Court in Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd [2022] HCA 1; (2022) 275 CLR 165 and ZG Operations Australia Pty Ltd v Jamsek [2022] HCA 2; (2022) 275 CLR 254 as well as the extent to which s 15AA of the Act requires a different approach to ascertaining whether a person is an employee.
We are conscious of the need to ensure fairness to both parties in the conduct of the appeal proceedings and have taken that matter into account. We are confident that the Full Bench will be able to ensure a fair hearing is conducted if Kagura has legal representation. The presence of counsel, even if only for one party, has the potential to assist in ensuring that a fair hearing occurs. The presence of responsible counsel should assist in ensuring that any available arguments are appropriately identified and ventilated. In any event, the members of the Full Bench will take such steps as are necessary at the hearing, and in reviewing the materials and written submissions, to ensure that no unfairness is caused to Ms Dickerson in the conduct of the appeal proceedings.
Having considered all of the circumstances, we are satisfied that granting permission for Kagura to be represented will assist the Full Bench in efficiently and appropriately determining the appeal for the purposes of s 596(2)(a) and that it is appropriate to exercise our discretion to permit representation. Accordingly, we grant permission for Kagura to be represented in relation to the appeal.
VICE PRESIDENT
Determined on the papers.
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