Majaraya Buenaflor AndPeter Dening v Australian Health and Nutrition Association Ltd T/A Sanitarium Health Food Company

[2021] FWC 1675

[2021] FWC 1675

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Majaraya Buenaflor

And

Peter Dening

v
Australian Health and Nutrition Association Ltd T/A Sanitarium Health Food Company
(U2021/362)

COMMISSIONER RIORDAN SYDNEY, 29 MARCH 2021

Application for an unfair dismissal remedy Application for an unfair dismissal remedy.

[1] On 14 January 2021, Ms Majaraya Buenaflor and Mr Peter Dening (together the Applicants) filed applications (the Unfair Dismissal Applications) for an unfair dismissal remedy pursuant to section 394 of the Fair Work Act 2009 (the Act). The Unfair Dismissal Applications named Australian Health & Nutrition Association Limited (the Respondent) as the Applicants’ former employer.

[2] The Unfair Dismissal Applications provided that the Applicants would be represented throughout the proceeding by Mr Justin Davis of the United Workers Union (UWU). The Respondent’s Form F3 indicated that the Respondent would be seeking permission for Mr Michal Roucek, a Senior Associate at Fisher Cartwright Berriman Pty Ltd, to represent them throughout the proceedings (the Application).

[3] On 3 March 2021, I called the matter on for Conference. At the Conference, the parties consented to the Unfair Dismissal Applications being heard and determined concurrently. Further, during the Conference the Applicants objected to the Application. For the following reasons the Respondent has been granted permission to be represented, by a lawyer, throughout the proceeding.

Relevant sections of the Act

[4] Section 596 of the Act governs when the Fair Work Commission (the Commission) may grant permission for a party to be represented by a lawyer or paid agent.

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 employersthat 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.

The Respondent’s Submissions

[5] With respect to section 596(2)(a) of the Act, the Respondent submitted that as the matter was factually and legally complex the Respondent being represented would assist the Commission to deal with the matter more efficiently.

[6] With respect to section 596(2)(b) of the Act, the Respondent submitted that none of their four human resource professionals could effectively represent the Respondent during the proceedings.

[7] With respect to section 596(2)(c) of the Act, the Respondent submitted that Mr Davis of the UWU has significant industrial relations credentials and experience. As such, given the Respondent’s lack of experience, it would not be fair to the Respondent if they were not permitted to be represented.

The Applicant’s Submissions

[8] With respect to section 596(2)(a) of the Act, the Applicant claimed that the Respondent did not submit that the Unfair Dismissal Applications were complex.

[9] The Applicant argued that the recent Full Bench decision in Wellparks Holdings Pty Ltd t/as ERGT Australia V Mr Kevin Govender[2021] FWCFB 268 supported their submission that leave should not be granted just because a jurisdictional objection exists in an unfair dismissal application.

[10] With respect to section 596(2)(b) of the Act, the Applicant submitted the Respondent’s Group Corporate General Council, Mr Daniel Rampling, was capable of representing the Respondent effectively. The Applicant submitted that Mr Rampling had significant industrial relations and legal experience.

[11] With respect to section 596(2)(c) of the Act, the Applicant submitted that Mr Davis was not a lawyer and that the preponderance of the UWU’s Legal/Industrial team were busy with other advocacy commitments.

[12] The Applicant further submitted that the Respondent had not identified whether it was a member of an employer organisation. The Applicant claimed that if the Respondent were to be a member of an industrial organisation it should weigh against the Commission granting the Respondent permission to be represented by a lawyer or paid agent.

The Respondent’s Submissions in Reply

[13] The Respondent submitted that if permission to be represented was not granted to the Respondent it is likely the Hearing would take 2 to 3 days, while if the Respondent was to be granted permission the Hearing would likely take 1 to 1.5 days.

[14] The Respondent confirmed that Mr Rampling was the Respondent’s General Counsel. However, the Respondent submitted that in his role with the Respondent, Mr Rampling was not involved in employment law matters nor did he advocate at courts or tribunals.

[15] The Respondent submitted that the UWU’s workload had no relevance to a consideration of section 596 of the Act.

[16] The Respondent confirmed that it is a member of the NSW Business Chamber. However, the Respondent submitted such a fact was not relevant to the Commission’s deliberations under section 596 of the Act.

Determination

[17] I have taken into account the submissions of the parties.

[18] The granting of leave for a party to be represented in a matter by a lawyer or paid agent is a discretionary matter for the Commission.

[19] In Wellparks the Full Bench of the Commission provided guidance as to the application of section 596 of the Act. The Full Bench stated:

“[48] The assessment of whether permission should be granted under s 596 involves a two-step process. The first step is to consider whether one or more of the criteria in s 596(2) is satisfied. The consideration required by this first step ‘involves the making of an evaluative judgment akin to the exercise of a discretion’. It is only where the first step is satisfied that the second step arises, which involves a consideration as to whether in all of the circumstances the discretion should be exercised in favour of the party seeking permission. The satisfaction of any of the requirements set forth in s 596(2)(a) to (c) does not of itself dictate that the discretion is automatically to be exercised in favour of granting permission.”

…

[51] We reject the proposition that jurisdictional issues are ‘by their nature’ complex. Some jurisdictional issues may properly be characterised as complex and others not. A case by case assessment is required, rather than the adoption of some general decision rule which assumes that all matters in which a jurisdictional issue arises are ‘complex in their own right’ and that ‘representation by a lawyer would be a reasonable course’. To the extent that Senior Deputy President Richards is to be understood as expressing a contrary view, we respectfully disagree.”

[20] Taking guidance from the Full Bench in Wellparks, every case must be determined on its own facts and circumstances. I have not granted leave on many occasions based on the relevant facts of a matter.

[21] I am satisfied that this matter will have a significant amount of detail and sufficient complexity which will justify the use of legal representation pursuant to section 596(2)(a) of the Act alone.

[22] From my experience, efficiency in relation to the cross examination of witnesses and the preparation of concise and reasoned submissions in a matter such as this is of benefit to all parties.

[23] Whilst the General Council of the Respondent had some experience in appearing before industrial tribunals many years ago, it is obvious that his recent endeavours have been focused on the fields of corporate and commercial law, to the absolute exclusion of industrial law. Further, Mr Drummond, the Respondent’s Human Resources Business Partner, is going to be a witness in the proceeding. Sitting in a witness box giving evidence is stressful enough for an individual without having to also be worried about the actual conduct of the case.

[24] Section 596(4) provides an exception for when a lawyer or paid agent who is employed in a range of circumstances does not need to seek leave to appear before the Commission. It does not say that a lawyer cannot appear for a party because the party is a member of an employer organisation.

[25] I am satisfied based on all of the circumstances of this matter, that I should exercise my discretion and grant leave for the Respondent to be represented by a lawyer throughout the proceeding.

Conclusion

[26] Leave is granted for the Respondent to be represented.

[27] I so Order.

COMMISSIONER

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