Lindy Ann O'Meara v South West District Legal Pty Ltd T/A SWD Legal

[2021] FWC 6449

[2021] FWC 6449

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Lindy Ann O’Meara
v
South West District Legal Pty Ltd T/A SWD Legal
(U2021/8370)

COMMISSIONER BISSETT MELBOURNE, 25 NOVEMBER 2021

Application for an unfair dismissal remedy – whether permission to appear should be granted under s.596 of the Fair Work Act 2009 – representation contested – permission granted.

[1] Ms Lindy O’Meara (Applicant) has made an application to the Fair Work Commission seeking relief from unfair dismissal. The Applicant was employed by South West District Legal Pty Ltd T/A SWD Legal (Respondent) and her employment was terminated on 1 September 2021

[2] On 21 October 2021 I issued directions for the filing of submissions and evidence in the matter. I also issued directions in which I required any party seeking permission to be represented by a lawyer or paid agent to file submissions by 4 November 2021 with submission opposing permission to be filed by 18 November 2021.

[3] The Respondent says it is a small business (which I do not understand to be disputed) and that the Applicant was summarily dismissed for removing client records and providing these to a previous employee of the Respondent.

[4] The Respondent seeks permission to be represented by a lawyer. The Applicant opposes the grant of permission.

LEGISLATION

[5] Section 596 of the Fair Work Act 2009 (FW Act) states:

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.

[6] As is apparent the FW Act commences on the premise that parties to proceedings before the Commission will represent themselves. Should a party seek to be represented by a lawyer or paid agent permission must be sought and granted. Exceptions to the requirements for permission are specified (and are not relevant in the matter before me).

[7] In considering the question of permission it is necessary to engage in a two-step process. The first step is to determine if any the requirements of s.596(2)(a)-(c) of the FW Act have been met. If any of these have been met the second step is to decide if the discretion available to grant permission should be exercised. 1 Further, the consideration of the grant of permission cannot be influenced by who it is intended provide that representation. The FW Act provides that permission be granted to a lawyer or paid agent, not to a particularly named lawyer or paid agent. It is not the role of the Commission to determine who should provide the specific representation should permission be granted.2

SUBMISSIONS

[8] The Respondent submits that the matter before the Commission (the objection of the Respondent to the unfair dismissal application) ‘involves the application of a narrow exception’ to the operation of the unfair dismissal provision in Part 3-2 of the FW Act. This matter is to be dealt with parallel to the merits of the application. This, the Respondent submits, is a complex exercise. This, coupled with the need for the Commission to be taken to relevant authorities are such that the Commission would be assisted if permission was granted. Such permission, the Respondent says, would reduce complexity in the matter and, in that way, allow the application to be dealt with more efficiently (s.596(2)(a) of the FW Act).

[9] The Respondent further submits that the Respondent’s principal, Mr Tweedly, runs a ‘small but very busy practice’ across two regional towns in Victoria and is not familiar with employment law matters. He does not have the capacity to fully prepare and run a case before the Commission on jurisdiction and merits within the timeframe allowed. Further, Mr Tweedly will be a witness in the proceedings. For these reasons the Respondent submits it would be unfair not to allow it to be represented.

[10] The Respondent says that it understands the Applicant has had assistance in the preparation of her case to date. Whilst that assistance is not given, as it understands, by a lawyer, that representative’s participation offsets any unfairness that might otherwise accrue to the Applicant if permission was granted. (ss.596(2)(a) & (b) of the FW Act).

[11] The Respondent further submits, in support of the grant of permission, that, if permission is granted, it will be represented by a lawyer who is an officer of the Court with a specific duty to the Commission to ensure a ‘full and frank disclosure’ of all matters relevant to the determination of the matter before the Commission. 3 The Respondent further referred the Commission to the decision of Deputy President Sams4 in which the Deputy President noted the benefit to the Commission where permission is granted.

[12] In her submissions opposing the grant of permission the Applicant rejects the Respondent submissions on efficiency but rather says that she ‘trust[s] fully in the Commissions ability to navigate to and apply relevant legal authorities to determine the matter.’

[13] The Applicant accepts that Mr Tweedly ‘is a busy man’ and is not an employment lawyer. However, the Applicant submits that he is a lawyer and therefore should be able to navigate relevant legislation with ease. Submissions for the Applicant state that her representative is not a lawyer, is very busy running his own businesses, is Chairman of a large body corporate and committee member of the ACVP Association Incorporated but still finds the FW Act easy to navigate. The Applicant therefore submits that Mr Tweedly should be capable of dealing with the matter before the Commission.

[14] The Applicant submits that the Respondent does employ a person (Ms Adle Brown) who has extensive experience in Business Management including roles in HR, Finance, OHS & Workcover and Infrastructure Management. 5 The Applicant submits that Ms Brown would appear capable of representing the Respondent.

[15] The Applicant dismisses the decision in Fluor Construction on the grounds she says that it was a complex case listed for 5 days and that the person for whom permission was sought is now a member of the Commission.

CONSIDERATION

[16] Section 596(2)(a) of the FW Act requires a consideration of whether a matter might be dealt with more efficiently if permission was granted taking into account the complexity of the matter. The Respondent says the Commission would be assisted by it bringing relevant authorities to the Commission’s attention. The Applicant suggests the Commission can find these authorities for itself and trusts the Commission will do so.

[17] The FW Act requires, prior to the consideration of the merits of a matter, that the Commission first determine (amongst other things) if the dismissal was consistent with the Small Business Fair Dismissal Code (Code). The experience of the Commission is that in such matters it is most efficient if submissions and evidence on Code compliance is given at the same time as that in relation to the merits of application. For this reason compliance with the Code and the merits of the case are more often than not listed together. This then requires that argument as to Code compliance and otherwise as to the validity of the reason for dismissal must both be marshalled and presented.

[18] The determination of whether a dismissal is consistent with the Code first requires a determination of the type of dismissal, as different reasons for dismissal under the Code dictate different considerations. The first type of dismissal is a summary dismissal and the second a dismissal on the grounds of capacity or conduct. Where the dismissal is a summary dismissal the Commission is required to consider a two-step process 6 in deciding if the dismissal complies with the Code. A summary dismissal requires a determination not of whether the conduct occurred based on the evidence but rather whether the employer held a reasonable belief that the conduct was serious enough to warrant a summary dismissal. This is, in my view a different inquiry to that normally undertaken where the Code is not in issue.

[19] This matter involves contested facts. The Respondent believes the Applicant engaged in certain conduct which the Applicant denies. The drawing out of that evidence in relation to the two-step process in Pinawin will be important in this matter. This suggests some complexity. Whilst the authorities in relation to a summary dismissal and the Code may be considered to be well settled, there is an efficiency that may be brought to the Commission by the marshalling of the evidence, a drawing out of the facts and the application of the law to those facts where this is done in an effective manner, particularly given the nuanced considerations necessary in a determination involving the Code.

[20] In these circumstances I am satisfied that the matter could be deal with more efficiently (than would otherwise be the case) if permission was granted.

[21] Having found that the requirements of s.596(2)(a) of the FW Act have been met it is not necessary to consider the other grounds relied on by the Respondent.

[22] Without further submissions in reply from the Respondent I make no finding as to whether the requirements of s.596(2)(b) of the FW Act are met. I would observe however, from reviewing the website referred to by the Applicant, that it would appear Ms Brown and Mr Tweedly are life partners such that requiring Ms Brown to represent the Respondent may create challenges of its own.

[23] With respect to s.596(2)(c) of the FW Act I note that the Applicant is represented. Whilst the Applicant’s representative says he is not a lawyer he is, on the face of it, competent in dealing with matters in the Commission. I know no more of him however. The relevant consideration however is not who the Respondent may have to represent it in proceedings but whether it would be unfair not to allow it to be represented taking into account fairness with the Applicant. To the extent that the Applicant is represented and taking into account matters of fairness I am also satisfied that the requirements of s.596(2)(c) of the FW Act are met.

[24] Having found that the requirements of s.596(2) of the FW Act have been met I am satisfied that permission should be granted. In doing so I would reiterate the views expressed by the Full Bench in Fluor Construction. Again it is not a relevant consideration as to who would be providing representation in Fluor Construction and that the particular individual is now a Member of the Commission is not a relevant consideration. I would also note that, having granted permission, should that prove worthy of reconsideration an application to that extent may be considered.

CONCLUSION

[25] I am satisfied the necessary prerequisite for the consideration of permission has been met. I am also satisfied that permission should be granted.

[26] Permission is therefore granted to the Respondent to be represented by a lawyer or paid agent in this matter before the Commission.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

<PR736134>

 1   See Warrell v Walton [2013] FCA 291 at [24]

 2   New South Wales Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office[2014] FWCFB 1663 at [24]

 3   E. Allan and Ors v Fluor Construction Services Pty Ltd [2014 FWCFB 174 at [48] (Fluor Construction)

 4   Applicant v Respondent [2014] FWC 2860 at [18]

 5   The Applicant bases this submission of material accessed on the Respondent’s website:   Pinawin v Domingo (2012) 219 IR 128; [2012] FWAFB 1359 (Pinawin)