Kyle Ogden v Prestia Holdings Pty Ltd
[2022] FWC 1736
•5 JULY 2022
| [2022] FWC 1736 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Kyle Ogden
v
Prestia Holdings Pty Ltd
(U2022/3037)
| DEPUTY PRESIDENT EASTON | SYDNEY, 5 JULY 2022 |
Application for an unfair dismissal remedy – section 596 – representation by lawyers and paid agents – permission to be represented granted.
On 11 March 2022 Mr Kyle Ogden made an application to the Fair Work Commission under s.394 of the Fair Work Act 2009 (Cth) for a remedy, alleging that he had been unfairly dismissed from his employment with Prestia Holdings Pty Ltd.
Mr Ogden has sought permission to be represented by a lawyer or paid agent under to s.596 of the Fair Work Act 2009 (Cth) (the FW Act). This decision deals only with Mr Ogden’s application for permission to be represented.
Section 596 of the FW Act is relevantly 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.”
Prestia Holdings Pty Ltd (“Prestia”) is represented in the proceedings by Australasian Convenience and Petroleum Marketers Association (ACAPMA), which is a registered employer association. Section 590(1) does not require that Prestia obtain permission from the Commission to be represented by ACAPMA.
The following general principles can be drawn from earlier decisions of the Commission and of the Federal Court on permission to appear:
(a)the default position is that each party appears on their own behalf;[1]
(b)permission may be granted “only if” at least one of the requirements of s.596(2) are made out;
(c)the assessment of whether permission should be granted under s 596 involves a two-step process: firstly considering whether one or more of the criteria in s 596(2) is satisfied, and secondly considering whether the Commission’s discretion should be exercised in favour of the party seeking permission in all of the circumstances of the case;[2]
(d)a decision to grant or refuse permission is not a mere procedural decision, it is a decision which may fundamentally change the dynamics and manner in which a hearing is conducted;[3]
(e)the Commission must perform its functions and exercise its powers in a manner that is fair and just, quick and informal, and avoids unnecessary technicalities;[4].
(f)allowing lawyers to appear in Commission proceedings runs the very real risk that what was intended by the legislature to be an informal procedure will be burdened by unnecessary formality;[5]
(g)representation by lawyers or paid agents who are familiar with and/or experienced in the Commission’s jurisdiction will generally be of assistance;[6]
(h)the only test the Commission must apply under s.596(2)(a) is whether granting permission “would enable the matter to be dealt with more efficiently”. In applying this test, the Commission must take into account the complexity of the matter, but it does not have to find that the matter is actually complex, nor does it have to find that a matter is more complex than other matters;[7]
there will be circumstances where permission for legal representation may enable a matter to be dealt with more efficiently even though it is not particularly complex;[8]
(j)In respect to fairness pursuant to s.596(2)(b) of the Act, the relevant test is not an assessment of the skills and education of the individual employer representative, but rather it involves an examination of the resources available to the applicant as a whole;[9]
(k)the Commission must give reasons for granting permission;[10] and
(l)a decision to grant permission can be reviewed or revoked under s.603. [11]
Mr Ogden was employed by Prestia as a licenced heavy vehicle dangerous goods driver. He argues that he does not have legal or practical experience in hearings in the Commission, that the factual dispute between the parties is complex due to the nature of the allegations, that granting permission would result in the proceedings being dealt with more efficiently and that it would be unfair if he was not granted legal representation in circumstances where Prestia is represented by an industry body.
Prestia argues that allowing Mr Ogden to be represented by a lawyer would result in an imbalance because ACAPMA personnel appearing in the matter have limited unfair dismissal experience “at Hearing level.” Prestia argues that the application is a simple matter that does not involve complexity of legal matters or jurisdictional objections, and that the “matter can efficiently and effectively be heard by the Fair Work Commission in the no cost, direct inquiry manner in which it was designed.”
There is some merit to Prestia’s submission that proceedings in the commission are “designed” to function properly without lawyers being involved. So far as the Act is concerned, the potential triggers for the granting of permission specifically limit the circumstances in which lawyers can appear.
I am satisfied that s.596(2)(a) and (c) are enlivened and that I can grant the permission sought. I am satisfied that the proceedings will progress more efficiently if Mr Ogden is represented by a legal practitioner, and that in the present circumstances it would be unfair to deny Mr Ogden permission whilst Prestia is represented, albeit not represented by a legal practitioner.
Secondly I am satisfied that it is appropriate to exercise my discretion and give Mr Odgen permission to appear by way of a lawyer. I must exercise the Commission’s powers in a manner that is fair and just, quick and informal, and avoids unnecessary technicalities (s.577). Prestia’s concern of an imbalance in the proceedings is unlikely to materialise but there is a facility within the Act, s.603, that allows my decision to be reviewed or revoked should the need arise.
DEPUTY PRESIDENT
[1] Warrell v Walton (2013) 233 IR 335, [2013] FCA 291 at [24].
[2] Wellparks Holdings Pty Ltd t/as ERGT Australia v Govender [2021] FWCFB 268 at [48], Inna Grabovsky v United Protestant Association of NSW Ltd t/a UPA[2018] FWCFB 4362 at [44].
[3] Warrell v Walton (2013) 233 IR 335, [2013] FCA 291 at [24], Inna Grabovsky v United Protestant Association of NSW Ltd t/a UPA[2018] FWCFB 4362 at [37].
[4] Fair Work Act 2009 (Cth), s.577.
[5] Warrell v Walton (2013) 233 IR 335, [2013] FCA 291 at [25].
[6] Priestley v Department of Parliamentary Services [2011] FWAFB 5585 at [13].
[7] Toby Artery v G Case & H Case T/A Gavin Case Marine Services[2021] FWC 4130 at [19]-[21].
[8] Singh v Metro Trains Melbourne[2015] FWCFB 3502 at [16].
[9] King v Patrick Projects Pty Ltd[2015] FWCFB 2679 at [18].
[10] Warrell v Walton (2013) 233 IR 335, [2013] FCA 291 at [26].
[11] Oratis v Melbourne Business School[2014] FWCFB 3869 at [8].
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