Kendall Cousins v United Workers Union
[2020] FWC 5142
•24 SEPTEMBER 2020
| [2020] FWC 5142 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
Section 394 - Application for an unfair dismissal remedy
Kendall Cousins
v
United Workers Union
(U2020/9115)
DEPUTY PRESIDENT ANDERSON | ADELAIDE, 24 SEPTEMBER 2020 |
Application for an unfair dismissal remedy – permission to be represented – section 596 FW Act – efficiency – complexity – fairness – permission granted on conditions
[1] This decision concerns a request by the United Workers Union (the Respondent, the Union or the employer) for permission to be legally represented in unfair dismissal proceedings before the Commission.
[2] The Union is an industrial organisation registered under the Fair Work (Registered Organisations) Act 2009 as an association of employees.
[3] On 3 July 2020 Kendall Cousins (the Applicant or Ms Cousins) filed an application (directly, not via a representative) for an unfair dismissal remedy under section 394 of the Fair Work Act 2009 (FW Act), alleging she was unfairly dismissed by the Respondent on 15 June 2020.
[4] On 10 July 2020 the Union filed an employer response via a representative (Hall Payne Lawyers) and notice of representative commencing to act.
[5] Conciliation before a staff conciliator on 28 July 2020 did not resolve the matter.
[6] I conducted a directions hearing on 6 August 2020. The Applicant attended in her own right and without any support person or representative. With permission (limited to the directions hearing) the Respondent was represented by Mr Kennedy of Hall Payne Lawyers. No officer employed by the Respondent attended the directions hearing.
[7] Directions were issued on 6 August 2020, which relevantly provide:
“[7] Permission has not yet been granted to Kendall Cousins or the United Workers’ Union to be represented in the hearing of this matter, in accordance with section 596 of the Fair Work Act 2009 (FW Act).
[8] If either Kendall Cousins or the United Workers’ Union seeks to be represented by a lawyer or paid agent, permission may be required under section 596 of the FW Act. If permission is sought, the FAIR WORK COMMISSION FURTHER DIRECTS that written submissions seeking permission must be provided to the Commission and to the other party by close of business (5.00pm ACST) 10 September 2020.
[9] If either party opposes a request for permission, they should detail the grounds for their objection in a brief written submission to the Commission and the other party by close of business (5.00pm ACST) 17 September 2020.
[10] If necessary, a decision will be made after 17 September 2020 on any requests for permission to be legally represented. I attach, for the assistance of the parties, section 596 of the FW Act concerning requests for permission to be legally represented.”
[8] I conducted a further interlocutory hearing on 17 September 2020 concerning an application by the Union for a production order. The Applicant attended in her own right. In the interests of efficiency, I allowed the Union to be represented at the production order hearing noting, and without compromise to, the Applicant’s foreshadowed substantive submissions in opposition to representation. A production order was made that day.
[9] The Union filed submissions in support of legal representation on 10 September 2020.
[10] Ms Cousins filed submissions in opposition on 17 September 2020.
[11] I subsequently received further submissions in opposition from Ms Cousins and the Union. Though not having granted leave for further submissions, they expand on grounds already advanced. In the interests of fairness, I have regard to them.
Submissions
[12] In support of its request to be represented, the Union submits:
• the matter involves complexity given the serious grounds on which it dismissed the Applicant;
• factual disputes and submissions over admissibility of evidence are likely to add to complexity;
• legal representation would allow evidence to be efficiently tested and would “speed the process”;
• whilst the Union employs industrial officers with familiarity with industrial matters, those officers act for members, not for the Union in its capacity as an employer;
• it would be unfair to require an officer of the Union to act for the Union in a case brought by a former staff member;
• the Union’s human resource area is small and operates independently from its member services and operational activities. The Union has an established practice of keeping its internal employment processes independent and confidential;
• there are no persons in the Union’s human resource area with expertise and experience in contested arbitration. The relevant human resources officer may herself be required to give evidence;
• Hall Payne Lawyers are familiar with the matter and have been involved prior to proceedings being commenced; and
• The Union does not object to the Applicant being represented, if she seeks representation.
[13] Ms Cousins objects to the Union being represented on the following grounds:
• the case is not factually complex as the Respondent intends to call just two or three witnesses;
• the allegations are unfounded and do not involve legal complexity;
• the Respondent is a large employee organisation with a dedicated human resource team and industrial officers who practice industrial relations and employment law and who regularly represent their membership in unfair dismissal hearings before the Commission;
• Ms Cousins has sought legal advice but not legal representation; and
• allowing the Respondent legal representation would be unfair.
Consideration
[14] Section 596 of the FW Act provides:
“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.”
[15] The United Workers Union can only be represented by a lawyer with permission of the Commission. 1
[16] 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.” 2 The second is that the discretion, if exercised, must be exercised in favour of the applicant for permission3 in the sense that the discretion concerns whether to grant permission, not whether to deny or withdraw an established right.
[17] The starting point for 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. 4 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.” 5
[18] 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
[19] Ms Cousins worked for the Respondent for slightly over six years. She was terminated, it appears, for allegedly operating a private business without approval of the Union and (it is alleged) during work hours.
[20] The matter involves factual disputes concerning the Applicant’s employment and the private business she operates. It also involves consideration of the employer’s policies and the Applicant’s contractual obligations.
[21] The matter is set down for three days of hearing in anticipation of the breadth of evidence and submissions that may arise.
[22] Although the matter is not uniquely complex, it involves a level of complexity beyond the norm given the legal and factual issues inherent in conflict of interest cases and the intersection between employment duties and private activities.
[23] Further, where serious allegations are raised, the testing of evidence and assessment of credit is a crucial component to fact finding. Without fact finding, the factual matrix cannot emerge upon which a decision can be founded.
[24] While the Commission is well experienced in the task of appropriately weighing evidence, given the nature of this matter I am satisfied that legal representation will assist proceedings to be conducted more efficiently.
[25] Section 596(2)(a) is made out.
Fairness
[26] 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.
[27] I accept the Respondent’s submission that its capacity to represent themselves as an employer is a different proposition to the capacity of its industrial officers to represent members in industrial proceedings.
[28] There is also force in the submission that it would be unfair to require an industrial officer of a Union to act for the Union in a case brought by a former staff member if, as it appears, the Union conducts its human resource activities as a wholly separate, distinct and confidential activity from its membership services and advocacy functions. It is not for the Commission to count a method of organising its affairs against a particular employer.
[29] Given that the Union’s human resource area is small and itself has no expertise in contested litigation it would be unfair to require an officer from that area to represent the employer, especially where the relevant officer may need to give evidence.
[30] Section 596(2)(b) is made out.
[31] Ms Cousins is self-represented. She is not represented in these proceedings. She has, as is her right, taken legal advice on her dismissal. Having done so does not minimise the potential disadvantage she may experience if her former employer is represented while she remains self-represented.
[32] Section 596(2)(c) is not made out. There would be a level of potential unfairness to Ms Cousins if the Union is granted legal representation.
Conclusion
[33] In exercising the statutory discretion each factor in section 596(2) does not have to be made out although each must be considered. 6
[34] I have found that the matter is sufficiently complex that a grant of legal representation would allow the matter to be dealt with more efficiently. I have found that it would be unfair to deny representation to the Respondent given the separation of its human resource activities from its membership services advocacy. I have found that a grant of permission would create imbalance and some perceived unfairness to Ms Cousins as a self-represented party.
[35] Ms Cousins is entitled to have her case fully heard, to have the Union’s response thoroughly tested and for this to occur in a procedurally fair manner.
[36] On balance, I conclude, particularly having regard to the importance of credit and effective fact-finding in a conflict of interest matter (section 596(2)(a)), that permission should be granted to allow the Union to be legally represented.
[37] I consider that any perceived unfairness as between the parties, especially potential unfairness to the Applicant, can be adequately overcome by adapting the hearing process to offer guidance and assistance to Ms Cousins, consistent with my role as an independent decision-maker, so that she can fully present her case and test that of her former employer.
[38] I also indicate that should I consider legal representation to not be contributing to the efficient conduct of the matter I will consider whether to revoke the grant of permission.
[39] Permission for the Respondent to be legally represented is granted on these conditions for the foregoing reasons.
DEPUTY PRESIDENT
Appearances:
K Cousins, in her own right.
J Kennedy (Hall Payne Lawyers), for the United Workers Union
Written submissions:
K Cousins, 17 and 20 September 2020
United Workers Union, 10 and 18 September 2020
Printed by authority of the Commonwealth Government Printer
<PR723062>
1 Section 596(4) does not apply in this matter
2 Asciano Services Pty Ltd v Hadfield[2015] FWCFB 2618 at [19]
3 Calleri v Swinburne University of Technology[2017] FWCFB 4187 at [36]
4 Warrell v Fair Work Australia [2013] FCA 291 at [24]
5 Explanatory Memorandum to the Fair Work Bill 2008 at paragraph 2291
6 Warrell v Fair Work Australia [2013] FCA 291 at [24]
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