Karen Tan v Australian Broadcasting Corporation

[2015] FWC 6741

[2015] FWC 6741

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Karen Tan
v
Australian Broadcasting Corporation
(U2015/9518)

SENIOR DEPUTY PRESIDENT HAMBERGER SYDNEY, 1 OCTOBER 2015

Application for permission to be legally represented in application for relief from unfair dismissal – s.596 – complex matter – large volume of evidence – jurisdictional issue –permission granted.

[1] Ms Karen Tan has made an application under s.394 of the Fair Work Act 2009 (Cth) (the Act), seeking relief from an alleged unfair dismissal by the Australian Broadcasting Corporation (the ABC). This matter has been set down for a jurisdiction and arbitration conference/hearing before me on 12 and 13 October 2015.

[2] The ABC has sought permission under s.596(2) of the Act to be represented by Minter Ellison, solicitors. It seeks to have that question of permission resolved prior to the hearing so it may prepare accordingly.

[3] Section 596(2) of the Act states that permission to be legally represented may only be granted on one of three bases:

“596 Representation by lawyers and paid agents

…

(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.”

[4] It is well-established that deciding to grant permission for a person to be legally represented under s.596 of the Act involves two steps. 1 Firstly, the Fair Work Commission (the Commission) must be satisfied that at least one of the circumstances in s.596(2) exists. Being so satisfied “involves the making of an evaluative judgment akin to the exercise of a discretion”.2 Secondly, “the discretion conferred by s.596(2) must be exercised in favour of the applicant for permission”.3

[5] In its written submissions dated 25 September 2015, the ABC submits that this matter satisfies s.596(2)(a) of the Act, because:

● the extent of the restructure of the ABC of which Ms Tan’s dismissal formed part and the consultation leading up to it make the matter factually complex;

● Ms Tan has made several different arguments and allegations in her submissions and correspondence, and the ABC’s witness evidence is substantial;

● the jurisdictional issue of whether Ms Tan’s dismissal was a genuine redundancy is “prospectively complex in [its] own right”; 4 and

● the matter involves interpretation of the redundancy provisions in the ABC Enterprise Agreement 2013-2016, which has “significant precedent implications”. 5

[6] Ms Tan has made written submissions outlining her objections to the ABC’s request, also dated 25 September 2015. In summary:

● She implicitly contends that this matter does not satisfy s.596(2)(b) of the Act, because she is self-represented and the ABC already has in-house legal counsel and is otherwise well-resourced. 6

● She submits that the ABC’s solicitors will “hinder” and “stall” proceedings rather than enabling the matter to be dealt with more efficiently. 7

● She does not consider there to be a “strong jurisdictional issue” involved in this matter. 8

● Part of Ms Tan’s submissions appear to be directed at refuting the ABC’s submissions about the breadth of her substantive submissions to date. 9

[7] I have considered both parties’ written submissions.

[8] I consider that I would be assisted by the ABC’s solicitors in traversing the substantial submissions and the large volume of evidence received to date. I consider that their participation in the upcoming proceedings will enable the matter to be dealt with more efficiently. I further accept the ABC’s submission that the threshold issue of whether Ms Tan’s dismissal was a genuine redundancy is a complex one, particularly given the context in which her dismissal occurred.

[9] I do not place weight on Ms Tan’s submission that since the ABC’s solicitors have been denied permission in a previous matter in which she was involved, I should follow the same course here. The previous matter to which she refers was not an application for an unfair dismissal remedy. Further, it was the subject of private conferences only, whereas the instant matter is set down for arbitration. In any case, each application must turn on its own facts. 10

[10] I note that Ms Tan has highlighted the fact that she is self-represented and is concerned there will be an “imbalance of power”. 11 However, only one of the three bases in s.596(2) of the Act needs to be made out for me to be able to grant permission.

[11] I consider that the requirements of s.596(2)(a) of the Act are satisfied. I have decided to exercise my discretion to grant permission to the ABC to be legally represented.

SENIOR DEPUTY PRESIDENT

 1   Warrell v Walton (2013) 233 IR 335 at [24].

 2   Asciano Services Pty Ltd v Hadfield [2015] FWCFB 2618 at [19].

 3   Singh v Metro Trains Melbourne[2015] FWCFB 3502 at [14].

 4   ABC’s submissions at para 12.

 5   Ibid at para 13.

 6   Tan’s submissions at paras a., f., l.-m., o.

 7   Ibid at para d.

 8   Ibid at para j.

 9   Ibid at para g.

 10   Asciano Services Pty Ltd v Hadfield [2015] FWCFB 2618 at [19].

 11   Tan’s submissions at para a.

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