Michael Lyle Jones v Karisma Joinery Pty Ltd

[2020] FWC 3123

[2020] FWC 3123

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Michael Lyle Jones
v
Karisma Joinery Pty Ltd
(U2020/3316)

COMMISSIONER CAMBRIDGE SYDNEY, 17 JUNE 2020

Termination of employment - representation by lawyers and paid agents.

[1] This Decision involves an application for unfair dismissal remedy which has been made under section 394 of the Fair Work Act 2009 (the Act). The application was made by Michael Lyle Jones (the applicant). The respondent employer has been identified to be Karisma Joinery Pty Ltd ABN: 17 003 804 395 (the employer).

[2] This Decision is made in respect to the discrete question as to whether the Fair Work Commission (the Commission) should grant permission for the employer to be represented by lawyers or paid agents (the representation question).

[3] The application was filed on 19 March 2020, and it indicated that the date of the applicant’s alleged unfair dismissal was 27 February 2020. Consequently, the application was made within the 21 day time limit prescribed by subsection 394 (2) (a) of the Act. On 6 April 2020, Donovan Jury Law solicitors acting on behalf of the employer, filed an employer response to the unfair dismissal application (Form F3).

[4] The filed documentation indicates that conciliation of the matter occurred on 21 April 2020. However, agreement was not reached to settle the matter, and during a telephone Pre-Hearing Conference held on 29 April 2020, the applicant indicated inter alia, that he opposed permission being granted for the employer to be represented by lawyers or paid agents. The substantive matter has been scheduled for Hearing/Conference on 23 July 2020.

[5] The solicitors for the employer, Donovan Jury Law, and the applicant, have each provided their respective documentary material regarding the representation question, with the material from the applicant, being received by the Commission on 9 June 2020. The representation question has been determined upon the documentary material which has been filed by the Parties.

Consideration

[6] The question of representation in proceedings before the Commission is governed by s. 596 of the Act which is 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.

(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.”

[7] The legislative intentions underpinning s. 596 of the Act have been the subject of various Decisions of the Commission and of Fair Work Australia. Further, the approach to consideration of the representation question has been examined by way of Judicial Review in the (incorrectly named) Judgment of Warrell v Walton  1 (Warrell) and it is relevant to note, in particular, paragraph 25 of that Judgment.

[8] It is also relevant to note that the operation of s. 596 of the Act has been the subject of more recent examination by a Full Bench Decision in the case of Fitzgerald v Woolworths Limited  2 (Fitzgerald). The Full Bench Decision in Fitzgerald has established, inter alia, particular practical consequences that have application in circumstances where permission for a Party to be represented by lawyers or paid agents is refused, or where lawyers or paid agents undertake a representative role without first obtaining the permission of the Commission.

[9] Subsection 596 (2) of the Act includes three factors which separately or in combination, provide the basis upon which the Commission can grant permission for a lawyer or paid agent to represent a Party in proceedings such as the Hearing/Conference of a claim for unfair dismissal. The three factors which can be identified in paragraphs (a), (b) and (c) of subsection 596 (2), can be paraphrased as: (a) complexity/efficiency; (b) inability/effectively; and (c) fairness.

[10] In this case, the solicitors for the employer have submitted that there was sound basis for the Commission to grant permission for the employer to be represented by lawyers. It was submitted inter alia, that the matter would be dealt with more efficiently if lawyers were permitted to represent the employer. Further, it was submitted that the employer would be unable to represent itself effectively in circumstances where the employer’s “director and principal actor in the events of the employment termination, Mr Zarantonello was raised in a non-English speaking household and speaks English as his second language. [whilst] The Applicant speaks English as his first language.”

[11] Conversely, the applicant has made submissions which stated his objection to the employer being granted permission for legal representation. The applicant submitted that, “In my opinion both parties should not have legal representation, so the truth doesn’t get misled”.

Complexity/Efficiency - Subsection 596 (2) (a)

[12] In this instance, the solicitors for the employer have submitted that the Commission would be assisted by the involvement of legal representatives who would enable the matter to be dealt with more efficiently. Conversely, the applicant has asserted that the involvement of lawyers may somehow lead to factual inaccuracy.

[13] Upon examination of the material which has been filed, and a consideration of any contests that may arise from it, it is clear that the matter does not involve any factual complexity nor does it raise any complex questions of law as has been asserted in the submissions made on behalf of the employer. The matter involves contested factual positions the like of which would be routinely encountered in many unfair dismissal claims. Consequently, this factor does not provide support for granting permission for the employer to be represented by lawyers.

Inability/Effectively - Subsection 596 (2) (b)

[14] The solicitors for the employer submitted that the employer would be unable to represent itself effectively without the assistance of lawyers. The submissions for the employer made mention that the employer did not have “a dedicated HR department or expertise, or familiarity with legal procedure.” As noted earlier in this Decision, the submissions for the employer also mentioned that a key member of the employer’s staff who was directly connected with the proceedings, had English as his second language, and by inference, this would place this person and the employer, at a disadvantage vis a vis the applicant, unless the employer was granted permission to be represented.

[15] The applicant would logically have a level of inexperience and unfamiliarity with quasi legal proceedings such as the Hearing of an unfair dismissal claim. The relevant staff for the employer would be similarly inexperienced and unfamiliar with the unfair dismissal proceedings, However, the difficulties associated with having English as a second language would understandably provide significant potential for the employer to be unable to represent itself effectively. Even in the context of a case without complexity, the employer would be likely to be incapable of making a “striking impression” or be “impressive” or be “powerful in effect” because of the language imbalance. Consequently, this factor provides support for granting permission for the employer to be represented by lawyers.

Fairness - Subsection 596 (2) (c)

[16] The issue of fairness between the Parties is a matter of recognised significance. In this instance the solicitors for the employer have not made submissions which have raised the question of fairness. The submissions made by the applicant also did not mention unfairness. Understandably the applicant may perceive that he would be at a disadvantage if permission was granted for a lawyer to represent the employer. However, he made no submission to this effect.

[17] In this case, having regard for the respective representational positions of the Parties, I have not been persuaded that there would be unfairness created if the employer was granted permission to be represented by lawyers, whilst the applicant represented himself. This position is reinforced by contemplation of the alternative configuration involving the relevant staff member of the employer being from a non-English speaking background which is one of the circumstances that are included in the notes to subsection 596 (2) of the Act.

[18] Although the Act envisages that Parties appearing before the Commission would not be represented by lawyers or paid agents, the particular circumstances that have been identified in this instance would be assisted by the involvement of lawyers to represent the employer in the alternative to a person from a non-English speaking background. Consequently, the circumstances in this instance have provided support for permission to be granted on the basis of effective representation, and fairness between the Parties.

[19] In view of the conclusions that I have reached in respect of each of the relevant aspects of subsection 596 (2) of the Act, the permission sought by the employer to be represented by lawyers or paid agents is granted. Permission is accordingly granted for either Party to be represented by lawyers or paid agents

COMMISSIONER

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 1 Warrell v Walton [2013] FCA 291.

 2   Stephen Fitzgerald v Woolworths Limited [2017] FWCFB 2797.