Kurt Wallace v AFS Security 24/7 Pty Ltd
[2019] FWC 3511
•23 MAY 2019
| [2019] FWC 3511 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Kurt Wallace
v
AFS Security 24/7 Pty Ltd
(U2019/1622)
COMMISSIONER CAMBRIDGE | SYDNEY, 23 MAY 2019 |
Termination of employment - representation by lawyers and paid agents.
[1] This Decision involves an application for unfair dismissal remedy made pursuant to section 394 of the Fair Work Act 2009 (the Act). The application was made by Kurt Wallace (the applicant). The respondent employer is the AFS Security 24/7 Pty Ltd ABN: 37147713157 (the employer).
[2] This Decision is made in respect to the discrete question as to whether the Fair Work Commission (the Commission) should grant permission for the employer to be represented by lawyers or paid agents (the representation question).
[3] The application was filed on 17 February 2019, and the application document indicated that the applicant was represented by Glen Wallace who is apparently neither a lawyer nor paid agent. The employer filed a response to the application dated 20 February 2019, and at that time the employer indicated that it did not have a representative.
[4] The file indicates that conciliation of the matter occurred on 15 March 2019. However, the matter was not resolved and it was listed for Pre-Hearing Conference on 22 March 2019. The matter has been scheduled for Hearing/Conference on 29 May 2019, in Armidale.
[5] On 21 May 2019, Michael Dennis solicitor, made a written application to the Commission seeking permission to represent the employer. Subsequently, the applicant has provided written objection to the employer being granted permission to be represented by lawyers or paid agents.
[6] I have examined and considered the documentary material provided by the Parties in respect of the representation question. In particular, I have carefully considered the application for permission made on 21 May 2019, by Michael Dennis solicitor as the basis for this Decision.
Consideration
[7] The question of representation in proceedings before the Commission is governed by section 596 of the Act which is in the following terms:
“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.”
[8] The legislative intentions underpinning s. 596 of the Act have been the subject of various Decisions of the Commission and Fair Work Australia. Further, the approach to consideration of the representation question has been examined by way of Judicial Review in the (incorrectly named) Judgment of Warrell v Walton 1 (Warrell) and it is relevant to note, in particular, paragraph 25 of that Judgment.
[9] Subsection 596 (2) of the Act includes three factors which separately or in combination, provide basis upon which the Commission can grant permission for a lawyer or paid agent to represent a Party in proceedings such as the Hearing/Conference of a claim for unfair dismissal. The three factors which can be identified in paragraphs (a), (b) and (c) of subsection 596 (2), can be paraphrased as: (a) complexity/efficiency; (b) inability/effectively; and (c) fairness.
[10] In this case, Michael Dennis solicitor has, in his written application, submitted that those factors found in subsections 596 (2) (b) and (c) of the Act, respectively involving, inability/effectively, and fairness, operated to provide basis for the Commission to grant permission for the employer to be represented by lawyers. Further, although it was acknowledged that the matter was not complex, Michael Dennis solicitor submitted that the Parties may have not identified “the real issue in the proceedings” and that the involvement of a lawyer may assist in focusing on the real issues and enable the matter to be dealt with more efficiently.
[11] Conversely, the applicant stated that he strongly objected to the employer being granted permission for legal representation particularly because he said that Mr Wallace was not a paid representative acting on his behalf. The applicant suggested that it would be unfair to him if the employer was represented by lawyers.
Complexity/Efficiency - Subsection 596 (2) (a)
[12] Although it was acknowledged that the matter was not complex, the involvement of a lawyer was said to provide potential assistance such that relevant issues would be identified and enable the matter to be dealt with more efficiently. One particular issue involving the period of the employment of the applicant as a casual employee was identified as a potentially relevant issue that may be more efficiently resolved with the assistance of a lawyer.
[13] Upon examination of all of the material which has been filed, and a consideration of any contests that may arise from it, it is clear that the matter is not complex. The issue regarding the engagement of the applicant as a casual employee, and the operation of subsection 384 (2) (a) of the Act has not been comprehensively addressed in the documentary material that has been filed by the Parties.
[14] However, it is relevant to note, without forming any concluded view, that the Form F3 (Employers response to unfair dismissal application) specified that the applicant began work with the employer on “06.01.2017” and his dismissal took effect on “06.02.19”. Further, at clause 3.2 of the Form F3 it is stated, inter alia; “the applicants [sic] next shift was not due until the 18th February 2019.”
[15] Consequently, although there is some strength to the proposition that the assistance of a lawyer might enable the matter to be dealt with more efficiently, this helpful prospect must be balanced against all other relevant factors.
Inability/Effectively - Subsection 596 (2) (b)
[16] Michael Dennis solicitor advanced an argument that because the employer is a small business it would be disadvantaged if it was unable to have a lawyer represent it. Further, it was asserted that disadvantage to the employer would arise because the applicant was represented by his father who was apparently a union representative with experience in industrial matters.
[17] In his written communication, the applicant stated that he was representing himself, and that Mr Wallace was not a representative from a union in his field of work.
[18] Upon examination of the submissions made on this point, I recognise that as a small business the employer may understandably have difficulties effectively representing itself without lawyers. These difficulties would also be experienced by an unrepresented applicant. Presumably both the applicant and the employer may have gained some assistance from external sources. The applicant has indicated that during the Hearing the applicant’s father will not be representing him. Once again, this factor must be balanced against all other relevant factors.
Fairness - Subsection 596 (2) (c)
[19] The issue of fairness between the Parties is a matter of recognised significance. In this instance both Parties have made submissions which have addressed the question of fairness.
[20] It was submitted that unfairness would arise if the employer was denied an opportunity to be represented by lawyers. Michael Dennis solicitor submitted that unfairness would arise if the employer was denied an opportunity to be represented by lawyers because it was a small business with no specialist human resources staff.
[21] The applicant stressed that he was unrepresented and there would be unfairness to him if the employer was permitted legal representation.
[22] In this instance, if permission for legal representation for the employer was granted there would appear to be a significant imbalance created because the applicant would be representing himself while the employer obtained external legal representation.
[23] In this instance, the determination of the representation question has been strongly influenced by the particular factors regarding fairness between the Parties, and the requirement for informality, as was recognised by his Honour in the Warrell Judgment; “The appearance of lawyers to represent the interests of parties to a hearing runs the very real risk that what was intended by the legislature to be an informal procedure will be burdened by unnecessary formality.” 2
[24] In the present circumstances, applying in particular, the reasoning contained in the Judgment in the Warrell case, I consider that unnecessary formality would be created by the granting of permission for legal representation. Further, a manifest unfairness between the respective Parties would emerge if permission was granted and an imbalance created between an unrepresented applicant against the employer’s external legal representatives. The resultant imbalance created by the appearance of more advantageous representation of the employer against the applicant should be avoided, particularly in circumstances where complexity has not been established. Therefore, the fairness criterion has, in this instance, operated strongly against the granting of permission.
[25] In view of the conclusions that I have reached in respect of each of the relevant aspects of subsection 596 (2) of the Act, the permission sought by the employer to be represented by lawyers or paid agents is refused.
COMMISSIONER
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1 Warrell v Walton [2013] FCA 291.
2 Ibid @ paragraph 25.