Kathryn Miller v Riverside Family Medical Practice Trust T/A Riverside Family Medical Practice

[2020] FWC 4532

[2020] FWC 4532

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
Section 394 - Application for unfair dismissal remedy

Kathryn Miller
v
Riverside Family Medical Practice Trust T/A Riverside Family Medical Practice
(U2020/7290)

DEPUTY PRESIDENT ANDERSON ADELAIDE, 28 AUGUST 2020

Application for an unfair dismissal remedy – permission to be represented – section 596 FW Act – efficiency – complexity – fairness – allegations of improper conduct - permission granted on interim basis

[1] This decision concerns a request for permission to be represented in unfair dismissal proceedings before the Commission.

[2] On 26 May 2020 Kathryn Miller (Ms Miller or the Applicant) filed an application in the Commission under section 394 of the Fair Work Act 2009 (FW Act) seeking a remedy for an alleged unfair dismissal from her employment with the Riverside Family Medical Trust (Riverside or the employer).

[3] Ms Miller’s application indicated that she has a representative, Collaborative Employment Solutions. The application was signed and emailed to the Commission by Ms Miller.

[4] Aside from certain informal communications (outlined below) the employer had not been responsive. No form F3 (Employer Response) has been filed despite a direction to this effect.

[5] The matter did not resolve before a staff conciliator on 25 June 2020 (at which time both the Applicant and the employer attended before the employer disengaged after becoming distressed).

[6] Following a directions hearing on 16 July 2020 (at which the employer did not attend) I issued directions requiring any party seeking to be represented to seek permission by 6 August 2020.

[7] On 6 August 2020 1 Collaborative Employment Solutions sought permission on behalf of Ms Miller. This followed unsuccessful conciliation before another member of the Commission on 5 August 2020 (conciliation which I had directed occur, and with which the employer did not engage).

[8] Following a directions hearing on 7 August 2020, I issued further directions setting the matter down for a merits hearing on 18 September 2020. I directed that any objections by Riverside to the request for permission be filed by 14 August 2020.

[9] No response was received by the employer by that date. On 19 August 2020 my chambers sent the employer a reminder and indicating that I had extended the date for filing any objections (as well as the employer’s F3) to close of business 20 August 2020.

[10] At 7.26pm on 20 August 2020 a written response (sent by email) was received from Riverside. The response (referred to below) is reasonably taken as an objection to the request for permission and a submission on merits.

[11] This decision determines Ms Miller’s request to be represented.

[12] I add for the sake of completeness that at the directions hearings on 16 July and 7 August 2020 Ms Miller appeared with her husband as a support person and with Collaborative Employment Solutions as her representative. In the absence of hearing from the employer, I did not grant Collaborative Employment Solutions permission (despite its request). However, I gave leave for Collaborative Employment Solutions to remain present with its client and observe proceedings and provide input where necessary. It did so.

Submissions

[13] In support of her request to be represented, Ms Miller submits:

•  that the matter concerns whether she was genuinely redundant, and that issue has legal complexity;

•  Ms Miller is a lay person inexperienced in Commission matters and unlikely to be able to represent herself effectively; and

•  if Riverside is represented by a person with experience, it would be unfair to deny Ms Miller the right to be represented.

[14] Riverside consider it has been harassed by “aggressive tactics” of Collaborative Employment Solutions, have alleged that its representative acted improperly in the vicinity of the employer’s private property following conciliation, asserted it has lodged a police report and expressed an intention to seek an intervention order from authorities if there is “further attendance”.

[15] Riverside also assert that it has been harassed by the Commission in the management of this matter.

[16] It claims that its business manager, who was listed as the contact person by Ms Miller in her application and who participated in the staff conciliation before disengaging, has subsequently been placed into psychiatric care in consequence of the above.

Consideration

[17] Section 596 of the FW Act provides 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.”

[18] Ms Miller can only be represented by a lawyer with permission of the Commission. 2

[19] Granting permission under section 596 involves a two-step process. The first is that at least one of the criteria in section 596(2) needs to be satisfied. The consideration required by this first step “involves the making of an evaluative judgment akin to the exercise of discretion.” 3 The second is that the discretion, if exercised, must be exercised in favour of the applicant for permission4 in the sense that the discretion concerns whether to grant permission, not whether to deny or withdraw an established right.

[20] The starting point for the exercise of the discretion is that granting permission should be seen as a departure from the default position that a party in proceedings before the Commission must normally appear on its own behalf. 5 This proposition is consistent with the statutory scheme:

“FWA is intended to operate efficiently and informally and, where appropriate, in a non-adversarial manner. Persons dealing with FWA would generally represent themselves.” 6 

[21] I now turn to consider the factors set out in section 596(2) of the FW Act: efficiency (in the context of the complexity of the matter); fairness (in the context of the capacity of the person seeking permission to effectively represent themselves); and fairness between the parties.

Efficiency and Complexity

[22] Ms Miller worked as a receptionist in a suburban medical practice. She was made redundant after three years and eight months service (COVID-19 impacts are referred to in the letter of termination). Her termination letter suggests she received three weeks notice in lieu and seven weeks redundancy pay.

[23] This matter requires determination of a jurisdictional issue (genuine redundancy), merits and remedy. It is not clear whether this is a small business (as defined).

[24] Ms Miller seeks reinstatement, payment for a pre-dismissal stand down period and unpaid superannuation.

[25] Two of the three remedies sought appear beyond the Commission’s power in the unfair dismissal jurisdiction (stand-down pay and payment for alleged unpaid superannuation).

[26] The genuine redundancy issue appears to require consideration of whether consultation required by an Award occurred and whether Ms Miller’s job was truly redundant if reception work continued to be performed by others.

[27] These matters involve some attention to factual detail and relevant legal principles but are not unduly complex.

[28] Ms Miller intends to lead evidence from herself at the hearing, and evidence from her husband. Each have filed a written witness statement. I have examined these statements to asses potential evidentiary complexity. The facts deposed appear relatively straightforward though there are some gaps in narrative that will need to be filled at the hearing. Gaps in a factual narrative is not an unusual occurrence.

[29] The presence of a jurisdictional issue (genuine redundancy) adds an element of complexity but in the circumstances the jurisdictional issue is not especially complex.

[30] Having regard to the above, section 596(2)(a) considerations somewhat support the granting of permission but not overwhelmingly so.

Fairness

[31] Sub-sections 596(2)(b) and (c) require fairness to be considered in two contexts: fairness in the context of the capacity of the person seeking permission to effectively represent themselves; and fairness between the parties.

[32] Ms Miller is a lay person unfamiliar with the jurisdiction. While it is possible for a lay person to effectively represent themselves this is not always so. The combination of Ms Miller’s unfamiliarity with the jurisdiction and the need to adduce her own evidence and evidence from her husband, as well as navigate the legal principles, add some weight to the request for permission.

[33] The employer in this matter appears to have disengaged somewhat from the proceedings and has made no indication that it intends to file a F3 response or appear, beyond its email submission of 20 August.

[34] The employer has a right to appear at the hearing of this matter. The absence of a contradictor (that is, if the employer elects not to appear) reduces potential unfairness to Ms Miller should permission not be granted. She would not in those circumstances be required to question employer witnesses or respond to oral employer submissions. She would simply need to present her case, and answer questions from the Commission.

[35] Having regard to the above, section 596(2)(b) considerations somewhat support the granting of permission but to a limited degree only.

[36] Section 596(c) concerns unfairness between persons in the matter.

[37] Ms Miller is correct to submit that if the employer is represented at the hearing (for example, by an industrial officer from a business association) then it would be unfair to refuse her permission. However, this submission is speculative. There is nothing on file that suggests the employer intends to be represented in this matter.

[38] Section 596(2)(c) is not made out.

Conclusion

[39] In exercising the statutory discretion each factor in section 596(2) does not have to be made out although each must be considered. 7 

[40] I have found that whilst there is some element of complexity given the genuine redundancy issue, it is not, in an overall sense, a complex factual narrative or a matter that raises novel issues of law. There are many redundancy related unfair dismissal cases before the Commission and that fact alone does not make each of those matters complex. There is no particular characteristic of this matter that renders the redundancy issue exceptional or weighing strongly in favour of granting permission.

[41] Having regard to fairness considerations, there is some advantage to Ms Miller in being represented given that her support person is also a witness and she is a lay person unfamiliar with arbitral litigation.

[42] On balance, and upon a consideration of the factors in section 596 of the FW Act, I am satisfied that it is appropriate to make an interim decision granting permission subject to further order. The decision is interim for the following two reasons.

[43] Firstly, I will review the grant of permission should the employer intend to appear self-represented at the hearing of the matter. If the employer intends to appear and intends to do so as a self-represented party then considerations of fairness between the parties arise under section 596(2)(c).

[44] Secondly, I will review the grant of permission should the employer lead evidence in support of its allegations of improper conduct by Ms Miller’s representative. As a general principle, the manner in which a party or representative conducts themselves in dealing with other parties or the Commission are material issues to the exercise of discretion under section 596. To date, the employer has made assertions that are disputed by the representative. Assertions are not facts. Any discretionary decision, including decisions under section 596, require a factual matrix. Not having advanced its position beyond making assertions, I am unable to make findings of fact on these issues. If required, I will make findings based on evidence and after hearing both parties.

[45] This is not to say that the concerns of the employer or the circumstances of the employer’s business manager are not real or of material concern. The employer has, to a large extent disengaged from these proceedings. This may or may not be on account of the welfare of its business manager and that may or may not be related to these proceedings. The employer did not appear at either of the directions hearings before me and has not filed a F3 as directed. The employer’s business manager initially appeared at the staff conciliation before disengaging due to distress causing the conciliator to be concerned for her wellbeing. The next formal communication was the submission lodged on 20 August 2020. In the interim the business manager expressed her distress to the staff conciliator on 2 July 2020 (by phone and in two emails) and my Associate spoke briefly to a Dr Elliott in the business on 29 July 2020 who expressed frustration at these proceedings and their impact.

[46] Whilst ultimately it is a matter for a responding party to determine how (if at all) they engage with proceedings launched against them, the Commission’s task is to deal with all matters fairly and to finality, unless resolved between the parties or other grounds exist for a different course. This matter has not resolved; hence the arbitral and more formal processes I am required to conduct. Whilst I appreciate the stress that litigation places on parties (applicants or respondents), the making of directions by the Commission and follow-up where directions have not been complied with is orthodox and cannot in any objective sense be considered harassment. If officers of a business find such processes daunting, they have the right to take professional advice or seek representation.

[47] I also note that correspondence by the Commission to the employer is currently being sent to Dr Elliot’s email address in view of the circumstances of his business manager, who was previously the email contact advised to the Commission and which had corresponded with the Commission. Until such time as a party advises of a change in their contact details (as the employer now has), it is proper for the Commission to communicate with that party via details previously advised.

[48] Subject to any other order, this application will proceed to a merit hearing by telephone on 18 September 2020. As has been indicated in correspondence from my chambers, a party not appearing or not putting evidence before the Commission is at risk of the matter being determined in their absence and their interests being affected.

[49] If Riverside intends to appear at the hearing on 18 September 2020 I direct that it notify my chambers and the other side of its intention (including whether it intends to be self-represented or represented) by no later than Friday 11 September 2020.

[50] I further direct that if Riverside intends to lead evidence at the hearing on any matters arising from its submission filed on 20 August 2020 it notify my chambers and the other side and file relevant witness statements by no later than Friday 11 September 2020.

[51] In the absence of the employer appearing or leading evidence, its submission of 20 August 2020 will be taken into account in the determination of this matter.

[52] Permission is granted for Ms Miller to be represented on the interim basis outlined in these reasons.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

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 1   Email 6 August 2020 5.59pm

 2 Section 596(4) does not apply in this matter

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

 4   Calleri v Swinburne University of Technology[2017] FWCFB 4187 at [36]

 5   Warrell v Fair Work Australia [2013] FCA 291 at [24]

 6   Explanatory Memorandum to the Fair Work Bill 2008 at paragraph 2291

 7   Warrell v Fair Work Australia [2013] FCA 291 at [24]