Kurt Chamberlain v Kilsyth Foods Pty Ltd T/A McDonald's Kilsyth

[2017] FWC 4809

[2017] FWC 4809

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Kurt Chamberlain
v
Kilsyth Foods Pty Ltd T/A McDonald’s Kilsyth
(U2017/6462)

COMMISSIONER RYAN MELBOURNE, 18 SEPTEMBER 2017

Application for an unfair dismissal remedy - representation by paid agent or lawyer.

[1] The Respondent has sought permission under s.596(2) to be represented by a lawyer or paid agent at the hearing of this matter to be held on 25 and 26 September 2017.

[2] The relevant provision of the Act is s.596 which is 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.”

Section 596(2)(a) - enable the matter to be dealt with more efficiently, taking into account the complexity of the matter

[3] The respondent in support of permission being granted pursuant to s.596(2)(a) contends as follows:

“10. The relative efficiency of dealing with a matter by allowing legal representation is to be considered in light of the complexity of the issues raised in the matter. Section 596(2)(a) of the FW Act permits the FWC to take into account matters of expediency, efficiencies and also the complexities to a matter.

11. It is submitted that allowing representation for the Respondent will enable the matter to be dealt with more efficiently, taking into account the complexity of the matter. The reasons for this are as follows:

a. This matter is legally complex. The Respondent contends that the matter involves sufficient legal complexity such that its determination would be assisted by legal representatives. The complexity arises from the serious misconduct engaged in by the Applicant, allegations of fraud and forgery and issues of differential treatment of employees. The Respondent would not be able to represent itself against wide-ranging matters as asserted by the Applicant in his submissions and the witness statements filed by him he intends to rely on in circumstances where it does not have any dedicated internal legal or human resources personnel and the sole Director is involved as a witness.

b. This matter has a complex history to it. The Applicant has been engaged by the Respondent in a variety of roles under a number of employment contracts and at different stores. As a consequence of the material filed by the Respondent, the contracts will need to be traversed in detail.

c. This matter is factually complex. This can be gleaned from the Applicant's submissions filed on 31 August 2017 where he attempts to raise further alleged causes of action including alleged adverse action taken against him, alleged bullying, alleged forgery and underpayment. Given the jurisdiction elected by the Applicant these matter are unable to be resolved in this forum. On account of this it is submitted that the Commission would be assisted by a legal representative in drawing its attention to the relevant facts and ensuring that the matter is heard within the scheduled timeframe

d. The Respondent submits that on the basis listed above, the hearing necessitates an analysis and application of the statutory criteria and applicable case law. The Commission would be assisted by a legal representative in drawing its attention, succinctly, to the relevant tests, thresholds, and requirements at law in connection with the matter.

e. The Respondent proposes to call three witnesses and the Applicant intends to call three witnesses Minimal evidence and cross examination can be undertaken through the assistance of a legal representative to elicit out the relevant facts at hand, increasing efficiencies7• It is submitted that the Commission will also be assisted in this regard as there are significant disputed factual issues on the face of the witness statements filed and the presence of a legal representative for the purposes of cross-examination would lead to greater efficiency as well as assisting the Commission in the evaluation of conflicting evidence.”

[footnotes removed]

[4] The Applicant in opposition of permission being granted to the Respondent pursuant to s.596(2)(a) contends that:

“9. The relative efficiency of dealing with a matter by allowing legal representation can be considered to over complicate a non-complex issue. Section 596(2)(a) of the FW Act permits the FWC to take into account matters of expediency, efficiencies and also the complexities to a matter.

10. It is submitted that allowing representation for the Respondent will not enable the matter to be dealt with more efficiently, taking into account the non-complexity of the matter. The reasons for this are as follows:

a. This matter is not legally complex. The Applicant contends that the matter does not involve sufficient legal complexity such that its determination would not be assisted by legal representatives. It is of the Applicants views that the assistance of legal representation at the arbitration will result in further complexity of a non-complex matter at hand. The Applicant is of the belief that any complex issues that could arise in the arbitration involve McDonald’s terms and McDonald’s policies and procedures. As a consequence of the material that will be assessed at the arbitration the Applicant is of the belief that Mr Nick Newton, Sole Director of two (2) McDonald’s Franchises, first becoming a franchisee of the McDonald’s Australia brand in or around the year of 1991. As well as the Respondent operating his licensee restaurants pursuant to a Lease and Licensee Agreement with McDonald’s Australia Limited, which in turn gives Mr Newton direct access to the McDonald’s Australia Legal and Human Resources Teams.

Therefore, the Applicant is to the belief that if external legal representation is to assist the Respondent it will further complex an issue that is in no way complex, due to the external legal representation not having the knowledge of the McDonald’s Industry like Mr Newton does.

b. This matter does not have a complex history to it. The Applicant has been engaged by the Respondent in a variety of roles and at different stores. However, the Applicant wishes for it to be noted that the Respondent is not supplying any form of any contract as evidence as proof of this case. As a consequence of the material not being filed by the Respondent, there are no contracts that need to be traversed in any way.

c. This matter is not factually complex. This can be gleaned from the Respondent’s outline of submissions filed on 11 September 2017 where the Respondent clearly “notes that it will not be responding to any points which relate to underpayment, forgery, and/or allegations akin to general protections claims”, the Applicant notes this. On account of this it is submitted that the Commission would not be assisted by a legal representative, due to the Applicant noting that the Respondent will not respond to the aforementioned points.

d. The Applicant submits that on the basis listed above, the commission would not be assisted in any way by the Respondent being represented by legal representation.”

[5] The matter before the Commission is both simple and straightforward. There is no level of complexity in either the factual basis of the parties’ respective cases or in the legal arguments advanced by the parties. There is nothing in this matter which would suggest that the matter would be dealt with more efficiently if the Respondent was granted permission to be represented by a lawyer or paid agent.

Section 596(2)(b) - would be unfair not to allow the person to be represented because the person is unable to represent himself, herself or itself effectively; or

[6] The Respondent in support of being granted permission pursuant to s.596(2)(b) contends that:

“12. The Respondent would be unable to represent itself effectively without legal representation. The Respondent's organisation does not have any internal legal or dedicated human resources specialist personnel.

13. The inability of the Respondent to effectively represent itself arises from the requirement that the particular person who would otherwise advocate the case for the Respondent, Mr Nick Newton (the Managing Director and sole Director of the Respondent), is the primary witness for the Respondent. Further, Mr Newton is not experienced in or trained in conducting proceedings in the FWC.

14. If the Respondent is refused permission to be represented, there is no other person

employed at the Respondent who could represent the Respondent. The other staff employed at the McDonald's Kilsyth store are relatively junior in experience are not trained or experienced in conducting proceedings at the FWC. Further, the Applicant is a tertiary educated student whose written material has been of a high standard and there is no indication the he would be unable to represent himself effectively.

15. In these circumstances it would be unfair not to allow the Respondent representation. In addition to this by not allowing the Respondent legal representation will likely lead to lengthen the required hearing time.

[7] The Applicant in opposition of permission being granted to the Respondent pursuant to s.596(2)(b) contends that:

“11. The Applicant contends that the Respondent would be able to represent itself effectively without legal representation. The Applicant notes that the Respondent’s organisation does not have any internal legal or dedicated human resources specialist personnel. However, the Respondent operates its restaurants pursuant to a Lease and Licensee Agreement with McDonald’s Australia Limited, of which McDonald’s Australia Limited has dedicated internal legal and human resources specialist personnel of which the Respondent has direct access to in the terms of his agreement.

12. The Applicant is of the belief that the Respondent is effectively able to represent itself as Mr Nick Newton (the Managing Director and sole Director of the Respondent), is the primary witness, however the Applicant sees no inability for Mr Nick Newton to be a primary witness and represent himself.

13. The Applicant confirms that he is a current tertiary education student, however would like to bring to the Commissions attention that the Applicant is studying a Bachelor of Engineering majoring in Civil Engineering as well as a Bachelor of Business majoring in Finance. The Applicant reiterates that Mr Newton is a sole director of two (2) McDonald’s Restaurants and is believed to have completed a Bachelor of Commerce in Economics. The Applicant also would like the FWC to acknowledge that Mr Newton was the individual from Kilsyth Foods Pty Ltd that terminated Mr Chamberlain’s employment. Mr Newton has also held various roles in the McDonald’s community including Chairman of the Victorian Licensee Marketing Co-Operative, member of the McDonalds Victorian Leadership Group and member of the National Marketing Committee. Therefore, the Applicant is seeing no reason regarding Mr Newton being unable to represent himself with the experience that he carries.

14. In these circumstances it would be unfair to allow the Respondent representation.”

[8] The issue posed by s.596(2)(b) is whether the party seeking permission to be represented is unable to represent itself effectively. The two words of importance in this provision are “unable” and “effectively”.

[9] The Macquarie Dictionary 6th edition defines “unable” as follows:

unable adj. not able (to do something); lacking ability or power (to do something); weak; impotent.

[10] The Macquarie Dictionary 6th edition defines “effective” as follows:

effective, adj. 1. serving to effect the purpose; producing the intended or expected result: effective measures; effective steps towards peace. 2. actually in effect: the law becomes effective at midnight. 3. producing a striking impression; striking: an effective picture. n. 4. a soldier or sailor fit for duty or active service. 5. the effective total of a military force. -effectively, adv

[11] The Oxford English Dictionary, 2nd edn, Volume III, defines ‘effectively’ as follows:

Effectively, adv
1. As a means of causing or producing
2. a. By a direct exercise of power. b. With regard to the effects. (chiefly Theol.) Obs
3. = In effect a. Actually, in fact (obs) b. Virtually, substantially.
4. So as to produce an effect. Often emphatically: With powerful effect; decisively, completely.
5. In a manner fit for service.

[12] It would appear that the plain meaning of the s.596(2)(b) is whether the party seeking permission to be represented is lacking ability or power to represent itself so as to produce the intended or expected result.

[13] I note that a decision of Richards SDP in CEPU v UGL Resources Pty Ltd (Project Aurora) at [16] and [17], and which is the only case cited in the Unfair Dismissals Bench Book on this matter, sets a higher bar for being represented effectively. However, I am of the view that the plain words of s.596(2)(b) do not require representation “that creates a “striking impression”, or which has an “impressive” effect or which is “powerful in effect”.

[14] Setting the bar so high for effective representation is a bar that most experienced industrial advocates and lawyers may find too high.

[15] In the present matter the fact that the sole director of the Respondent is also a witness for the Respondent does not mean that the Respondent cannot be effectively represented by its sole director. In the present matter the Respondent has engaged a legal representative who has prepared the written submissions and witness statements relied on by the Respondent. The Respondent’s case has been filed with the Commission. This is not a case where the representative of the Respondent has to put the Respondent’s case for the first time to the Commission by way of oral argument and by way of leading evidence from its witnesses. The very reason for the Commission issuing directions to the parties requiring the filing and serving of their respective cases well before the hearing dates is to allow the parties to do just what the Respondent has done: seek legal assistance in the preparation of the Respondent’s case. Even where the Respondent is not granted permission to be represented by a lawyer or paid agent there is nothing which would prevent the Respondent from having its preferred legal representative present at the hearing to advise the Respondent’s sole director whilst he represents the Respondent.

[16] Having regard to all of the circumstances of this matter I conclude that the Respondent would be able to represent itself effectively in the matter.

Section 596(2)(c) – unfair not to allow the person to be represented by taking into account fairness between the parties

[17] The Respondent in support of being granted permission pursuant to s.596(2)(c) contends as follows:

“16. The Respondent submits that it would be unfair to not allow it to be legally represented at the hearing.

17. The Applicant been on notice since 30 June 2017 that the Respondent is legally represented. Further, the Applicant was terminated over 3 months ago and has had the opportunity to obtain representation. Vice President Watson in Hepner v Fine Food Solutions noted that 'both parties may be represented if they chose to do so'.

18. The legal representative of the Respondent undertakes to participate in the hearing with as little formality as possible and are prepared to assist the Applicant through the hearing in his appearance, when it is possible and appropriate to do so. It is submitted that in participating in the hearing in this manner will ensure the matter is dealt with greater efficiency and will assist the FWC and the parties.

19. It would be unfair to deny the Respondent the ability to be represented, taking into account:

(a) The Respondent is managed by its only Director, Nick Newton.

(b) The Respondent has engaged external representation in these proceedings. That representation prepared the Respondent's employer's response, submissions and witness material (which were then served on the Applicant by the Respondent's representative) and has been involved in this matter from the outset;

(c) The Respondent's legal representative has attended/participated in the conciliation listed by the FWC; and

(d) The Applicant has known and is aware of the Respondent's engagement of external representation.

20. In Lawrence v Coal & Allied Mining Services Pty Ltd.• Under the criterion of fairness, Commissioner Stanton noted that the Respondent's solicitors had been involved throughout the matter and " ... should not, in my view, be prevented from utilising those legal resources previously retained for the purposes of defending this matter."

21. This was also considered in the matter of Roland v Austar Coal Mine Pty United where Commissioner Stanton noted on the issue of fairness that the Respondent should not be prevented from utilising legal resources previously retained for the purpose of defending this matter.

22. As detailed above, if the Respondent is not granted permission to be represented by a lawyer or paid agent, then it will be represented by an employee of the Respondent who has limited relevant experience in employment law, advocacy and limited time in which to familiarise themselves with the proceedings and prepare for the hearing.”

[18] The Applicant in opposition of permission being granted to the Respondent pursuant to s.596(2)(c) contends that:

“15. The Applicant submits that it would be unfair to allow the Respondent to be legally represented at the hearing.

16. It would be unfair to allow the Respondent the ability to be represented, taking into account:

(a) The Applicant does not have any legal assistance in this case

(b) The Applicant is not able to gain legal assistance in this case due to not having the funds and resources required

(c) The Respondent is more than capable of representing itself at the hearing.”

[19] The Applicant gave details of his education as follows:

“The Applicant confirms that he is a current tertiary education student, however would like to bring to the Commissions attention that the Applicant is studying a Bachelor of Engineering majoring in Civil Engineering as well as a Bachelor of Business majoring in Finance.”

[20] In circumstances where the Applicant in this matter is not legally trained or qualified there would appear to be no unfairness visited upon the Respondent if the Respondent is not granted permission to be represented by a lawyer or paid agent.

[21] The authorities relied on by the Respondent do not assist its case. In each of the two matters before Stanton C the Applicant was represented by an experienced union industrial officer. Such is not the case in the present matter.

Conclusion

[22] The Commission is satisfied that none of the necessary preconditions specified in s.596(2)(a), (b) or (c) exist and therefore the Respondent’s application to be granted permission to be represented by a lawyer or paid agent is refused.

COMMISSIONER

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