Michelle King v Prouds Jewellers Pty Ltd

[2016] FWC 1243

[2016] FWC 1243

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Michelle King
v
Prouds Jewellers Pty Ltd
(U2015/14118)

COMMISSIONER HUNT BRISBANE, 29 FEBRUARY 2016

Application for relief from unfair dismissal – representation by lawyers and paid agents.

[1] Ms Michelle King (the Applicant) was employed as an Assistant Store Manager with Prouds Jewellers Pty Limited (the Respondent) until she was dismissed for serious misconduct on 23 October 2015. It is alleged that the Applicant created and paid down a lay-by in breach of the Respondent’s policies and procedures, bullied a team member, allowed a friend to become entitled to a staff discount, and wrote up her own repairs. The Applicant has made an application pursuant to s.394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy.

[2] The matter is listed for hearing before the Fair Work Commission (the Commission) on 2 March 2016. The Applicant is represented by her domestic partner, Mr Allan Williams. The Respondent has sought permission to be represented by a lawyer pursuant to s.596 of the Act. The Applicant opposes this application.

[3] During a telephone mention with the parties on 23 February 2016, the matter of legal representation was addressed. Mr Williams advised the Commission and the Respondent, represented by Mr Williamson of WilliamsonLegal that legal representation was not opposed. Mr Williamson advised the Commission and the Applicant that the Respondent at hearing would not be represented and that the Respondent would conduct the hearing by in-house personnel.

[4] Later that afternoon, Mr Williamson emailed correspondence to the Commission and to the Applicant requesting permission for the Respondent to be represented by a lawyer having had participated in the telephone mention and reviewing the evidence in the matter.

[5] Directions were issued on 24 February 2016 requiring the parties to file written submissions and serve a copy on the other party with respect to s.596 of the Act. The provisions within s.596 were reproduced in full in the Directions issued. Both parties have made submissions in relation to the application.

[6] The relevant provisions of the Act are set out in s.596(1) and (2):

“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.”

[7] In support of their application for representation pursuant to s.596(2)(a), the Respondent submits:

(a) that there is a degree of factual complexity evident within the material already filed in preparation for hearing;

(b) consideration by the Commission of the Applicant’s employment agreement, the Respondent’s terms and conditions, policies and procedures, including the code of conduct the team member employment and safety handbook, security policy and procedure manual will be necessary;

(c) having dismissed the Applicant for alleged serious misconduct, the Respondent bears the onus of proof, involving a degree of factual complexity;

(d) it will be necessary to make a credit assessment of various witnesses and cross-examination of the Applicant will be necessary;

(e) representation by a lawyer will assist in ensuring that there is evidence and submissions before the Commission which will allow the proceedings to be conducted more efficiently.

[8] In support of their application for representation pursuant to s.596(2)(b) and (c), the Respondent submits:

(a) the Applicant was employed as an Assistant Store Manager for a considerable period of time and was an experienced employee who held a degree of managerial responsibility; and

(b) the Applicant is represented by Mr Williams a Business Development Manager, and Mr Williams’ representation would appear to significantly remedy any perceived relative unfairness between the parties.

[9] In opposing the request to allow the Respondent to be allowed representation, the Applicant submits:

“…..we could not understand why …….they would be withdrawing their legal representatives and it would be handled inhouse in order to mimimize costs …..and then same day apply to have representation reinstated[.] Due to the amount of evidence involved we felt that ample time has been granted to both parties to study the evidence submitted.”

[10] It would appear the Applicant opposes the request for representation being granted on two grounds. The first being that the Respondent’s legal representative advised the Commission and the Applicant that the Respondent would be represented at hearing by Respondent personnel, and then sought permission to have legal representation. The second being that the parties have had ample time to review the evidence filed.

Consideration

[11] The decision of Flick J in Warrell v Walton 1 addresses the obligation to strike a balance between the objective of an informal determination process with equity and efficiency considerations depending on the circumstances of a particular matter:

“[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)...”

[12] The Respondent has addressed s.596(2)(a), submitting a number of potentially complex issues concerning the evidence, the Respondent’s practices, the onus of proof, determination of witness credibility; and that legal representation will assist the Commission to consider these issues more efficiently.

[13] After consideration of the materials before me at this time, including the Applicant’s submissions, I am persuaded that legal representation of the Respondent would enable the matter to be dealt with more efficiently given the complexity of the matter.

[14] Having considered the Respondent’s submissions with respect to s.596(2)(b), I am not persuaded that it would be unfair if the Respondent was not allowed to be represented because it is unable to represent itself effectively. Such a proposition is not properly made out within the material provided by the Respondent.

[15] Similarly, I am not persuaded by the Respondent’s submissions with respect to s.596(2(c). While Mr Williams for the Applicant is a Business Development Manager, I am not satisfied that a refusal to allow representation would cause unfairness to the Respondent.

[16] For the reasons set out above, I am satisfied that the requirement in s.596(2)(a) has been met, and exercise the discretion provided in s.596 to grant permission for the Respondent to be represented by a lawyer in the hearing on 2 March 2016.

COMMISSIONER

 1 [2013] FCA 291

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