Leyouwerk Araya v Douttagalla T/A Yarraville Village Nursing Home

[2015] FWC 8676

[2015] FWC 8676

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Leyouwerk Araya
v
Douttagalla T/A Yarraville Village Nursing Home
(U2015/14997)

COMMISSIONER RYAN MELBOURNE, 15 DECEMBER 2015

Application for relief from unfair dismissal - permission to represent.

[1] The Respondent has sought permission to be represented by a lawyer or paid agent at a hearing to deal with a jurisdictional challenge to the Applicant’s unfair dismissal application.

[2] The Respondent has filed written submissions in relation to the Respondent’s request for permission to be represented.

[3] Representation by lawyers or paid agents is dealt with in s.596 of the Act 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.”

[4] The proper approach to the application of s.596 was discussed as follows by the Federal Court (Flick J) in In Warrell v Walton: 1

“[24] A decision to grant or refuse “permission” for a party to be represented by “a lawyer” pursuant to s 596 cannot be properly characterised as a mere procedural decision. It is a decision which may fundamentally change the dynamics and manner in which a hearing is conducted. It is apparent from the very terms of s 596 that a party “in a matter before FWA” must normally appear on his own behalf. That normal position may only be departed from where an application for permission has been made and resolved in accordance with law, namely where only one or other of the requirements imposed by s 596(2) have been taken into account and considered. The constraints imposed by s 596(2) upon the discretionary power to grant permission reinforce the legislative intent that the granting of permission is far from a mere “formal” act to be acceded to upon the mere making of a request. Even if a request for representation is made, permission may be granted “only if” one or other of the requirements in s 596(2) is satisfied. Even if one or other of those requirements is satisfied, the satisfaction of any requirement is but the condition precedent to the subsequence exercise of the discretion conferred by s 596(2): i.e., “FWA may grant permission...”. The satisfaction of any of the requirements set forth in s 596(2) (a) to (c) thus need not of itself dictate that the discretion is automatically to be exercised in favour of granting “permission”.”

[25] 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. The legislative desire for informality and a predisposition to parties not being represented by lawyers emerges, if not from the terms of s 596, from the terms of the Explanatory Memorandum to the Fair Work Bill 2008 (Cth)...”

[5] In the present matter the Respondent relies on paragraphs 596(2)(a) and (c) for seeking permission to be represented by a lawyer or paid agent.

[6] The matter raised by s.596(2)(a) requires that the Commission consider both the complexity of the matter and any efficiencies which may flow from having a party represented. The arguments contended by the Respondent about complexity mostly go to the merits of the case, which I will not be considering. There is no level of complexity in relation to the jurisdictional matter that must be considered and determined by the Commission on 16 December 2015, and the case law is well known to the Commission and the respondent’s representative would not be assisting the Commission in relation to case law. Further, the Applicant has filed very little material in support of being granted an extension of time.

[7] Section 596(2)(c) requires the Commission to consider potential unfairness to the person seeking to be represented (in this case the Respondent) if they were not allowed to be represented taking into account fairness between them and other persons involved in the matter (in this case the applicant). The arguments contended by the respondent in relation to s.596(2)(c) are not going to apply where the Applicant is representing herself and where it is clear from the Applicant’s own submissions that she has not had assistance from the union for some time, and where it is very clear that the Applicant, as a self represented party, has prepared her own material in terms of her F2 application and written submissions.

[8] Permission is refused to the Respondent to be represented by a lawyer or paid agent in the hearing of the jurisdictional challenge to the Applicant’s unfair dismissal application.

COMMISSIONER

 1 [2013] FCA 291.

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