Magdalen Lee v Northern Health
[2022] FWC 73
•18 JANUARY 2022
| [2022] FWC 73 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Magdalen Lee and Others
v
Northern Health
(U2021/10011, U2021/10144, U2021/10301)
| COMMISSIONER BISSETT | MELBOURNE, 18 JANUARY 2022 |
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.
On 23 December 2021 I issued directions for the filing of submissions and evidence in relation to the above applications. Those directions also required any party seeking permission to be represented by a lawyer or paid agent pursuant to s.596(2) of the Fair Work Act 2009 (FW Act) to file submissions in support of such representation by Friday 7 January 2022. Any party opposed to the grant of permission was requested to file submissions by Friday 14 January 2022.
Permission to be represented
Section 596(2) of the FW Act sets out the necessary requirements to be met such that the Commission may consider the grant of permission to a party to be represented by a lawyer or paid agent. It is well established that only one of the requirements in s.596(2) of the FW Act needs to be met prior to the Commission considering the exercise of its discretion in considering whether permissions should be granted.[1]
In this matter the Applicants and Respondent each seek permission to be represented by a lawyer or paid agent.
The Applicant seeks permission on the following grounds:
·The Applicants have no familiarity with the Commission and, given the complexity of the matters and sophistication of the Respondent, it could be dealt with more efficiently if the Applicants were represented by an advocate;
·The Respondent has a well-resourced human resources department, in-house lawyers and has engaged government lawyers such that it would be unfair not to allow the Applicants to be represented;
·There is a significant power imbalance between the Applicants and the well-resourced human resources department of the Respondent such that it would be unfair not to allow the Applicants to be represented.
The Applicants do however object to the Respondent being represented by a lawyer or paid agent because, they say, the Respondent has a well-resourced human resources area with at least 3 in-house lawyers who have been involved in the disciplinary processes and decision to terminate staff. Further, they say there is no jurisdictional matter in the claim that might cause complexity and no major complexities in the case as put by the Respondent.
In addition the Applicants submit that their representative is a colleague who was employed by the Respondent and whose employment was terminated on similar grounds. He has no expertise in industrial matters although is legally qualified. It would therefore be unfair to allow the Respondent to be represented by a “private legal representative” and deny the Applicants’ representation.
The Applicants say that there is no evidence that the in-house lawyers could not represent the Respondent and unfairness would not arise if the Respondent was denied permission
The Respondent seeks permission to be represented by a lawyer on the following grounds:
·There is complexity in the matters before the Commission as they go to the fairness of the dismissals in circumstances where there the Respondent was required, under the Chief Health Officer (CHO) Directions, to exclude unvaccinated workers from the workplace and the Applicants have raised matters associated with compliance with occupational health and safety obligations. The matter could therefore be dealt with more efficiently if permission was granted;
·The Respondent’s in-house lawyers have no industrial advocacy experience, the Respondent is involved in multiple matters before the Commission and possibly the Federal Court or Federal Circuit and Family Court in the near future and is intending to use external legal services in such matters. Further, the Respondent’s medical and administrative resources are under enormous pressure given current daily infection rates and renewed intensity of the pandemic in Victoria such that it would be unfair not to allow the Respondent to be represented;
·It would be unfair not to allow the Respondent permission to be represented if the Applicants were granted permission.
The Respondent submits that the matters before the Commission raise questions of importance and complexity in the circumstances of the CHO Directions to be vaccinated such that the Commission should exercise its discretion to grant permission.
The Respondent indicated it would not object to the Applicants being represented in circumstances where that is extended by the Applicants to the Respondent.
Consideration
In determining if the requirements of s.596(2) of the FW Act have been met such that the Commission should consider the exercise of its discretion to grant permission, the Commission does not make a decision as to who it may be that then provides that representation.[2] The question before the Commission is, firstly, whether any of the pre-requisites for the consideration of the grant of permission have been met. Only then should the Commission consider whether it should grant permission.
Each of the applications before the Commission is in relation to a claim that the dismissal was unfair in circumstances where the Respondent was subject to relevant CHO Directions such that those CHO Directions did not allow the Respondent to have employees on the premises who were not vaccinated.
The Applicants do not appear to challenge the validity of the CHO Directions but rather the decision taken by the Respondent to terminate their employment in circumstances where they say:
·It was contrary to the provisions of the relevant enterprise agreement;
·A finding that their action was wilful or deliberate (and hence serious misconduct) cannot be lawfully or rationally justified;
·The Respondent misconstrued the CHO Directions and did not consult under work health and safety laws;
·The Respondent unilaterally changed the employment contracts;
·The Respondent unlawfully discriminated against the Applicants by terminating their employment for reason of not receiving the vaccine.
The grounds on which the Applicants each say their dismissal was unfair raise a number of intersecting matters – the CHO Directions, the relevant enterprise agreement, the operation and intersection of the CHO Directions with the relevant health and safety laws, whether the requirement to be vaccinated constitutes an impermissible variation to an employment contract and the implications of the requirement to be vaccinated in relation to the Disability Discrimination Act 1992.
Matters associated with the requirement to be vaccinated, such as the CHO Directions in this case, have been the cause of many recent applications before the Commission as a result of the dismissal of employees for a failure to comply with those mandates. Issues around the validity or lawfulness of such Directions and their interaction with other laws raise complex issues beyond matters most routinely found in dealing with unfair dismissal applications. These are matters to be addressed in a clear and structured manner by both parties. In this respect the Applicants are right – there is complexity in the matters. I am of the view, given the matters to be traversed, that representation would enable these matters to be dealt with more efficiently.
Having found such complexity it does not operate only to satisfy the requirements of s.596(2)(a) of the FW Act for the Applicants, it applies equally to the application for permission to be granted to the Respondent.
For these reasons I am satisfied that the ability to deal with the matters more efficiently, given its complexity is a relevant consideration in relation to all applications for permission.
I am satisfied that it would be unfair to the Applicants not to allow them to be represented. I accept in this respect that none of them could represent themselves effectively.
I am satisfied it would be unfair to the Applicants not to allow them to be represented in proceedings and that this would be the case whether the Respondent was granted permission or not.
In this case both parties seek permission to be represented. The Applicants suggest however that it would be unfair to allow the Respondent to be represented in circumstances where the Applicants may be given permission. I am not convinced that this is so. The primary argument of the Applicants is that the Respondent has internal legal advisors who could effectively provide representation. They do not suggest that this internal representation would be somehow different in effect. I do not consider, in this respect, that the grant of permission to the Respondent would change the dynamics and manner in which the hearing would otherwise be conducted.[3] In any event the question is whether it would be unfair to the Applicants not to allow them to be represented taking into account fairness between the parties to the matter.
Conclusion
I am satisfied that the requirements of s.596(2)(a) of the FW Act been met for each of the Applicants and Respondent. I am further satisfied that s.596(2)(b) of the FW Act is also met by the Applicants.
Having found that s.596(2)(a) of the FW Act is met for the Respondent I do not need to determine if ss.596(2)(b) or (2)(c) of the FW Act is not met for the Respondent.
Applications seeking relief from unfair dismissal involving disputes in relation to the CHO Directions requiring vaccines are relatively new matters before the Commission. The Commission will be assisted in both parties being represented before the Commission. For this reason I am satisfied that I should exercise my discretion and grant permission to both parties to be represented.
In reaching my conclusion I have taken into account the current unprecedented demands being placed on the health system (and hence the Respondent) by the increase in COVID-19 infections and hospital cases, the effect of the increased cases on resourcing and hence the administration of the Respondent and the number of claims for unfair dismissal or other claims by former employees of the Respondent.
In correspondence to the Respondent’s representative (copied to my chambers) on 13 January 2022 the Applicants say that “pursuant to s 596 of the FWC and authorities in Steven Fitzgerald v Woolworth Limited [2017] FWCFB 2797, the applicants object to all legal services provided by your firm to the respondent” (sic).
This correspondence was not directed to the Commission and I do not take it as an application pursuant to Rule 12 of the Fair Work Commission Rules 2013 that the Respondent not be represented in relation to the matter before the Commission in any respect without permission. If it was such an application there is nothing in the conduct of the Respondent’s representative such that I would be minded, on the material before me, to exercise my discretion and direct that the representative could not represent the Respondent without permission. In any event, having found that permissions should be granted to the Respondent to be represented in the matter pursuant to s.596(2)(a) of the FW Act it would be inconsistent to exclude representation outside the direct hearing of the application.
Permission is therefore granted to the Applicants and the Respondent to be represented by a lawyer and paid agent in these matters before the Commission.
COMMISSIONER
[1] Grabovsky v United Protestant Association of NSW Ltd T/A UPA[2018] FWCFB 4362 at [35]
[2] New South Wales Bar Association v McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office[2014] FWCFB 1663 at [24]
[3] Warrell v Walton [2013] FCA 291, 233 IR 335 at [24]
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