Miss Jisu Jeong v Alpha Flight Services Pty Ltd T/A Alpha Flight Services

[2016] FWC 2778

[2016] FWC 2778

FAIR WORK COMMISSION

DECISION

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

Miss Jisu Jeong
v
Alpha Flight Services Pty Ltd T/A Alpha Flight Services
(U2016/319)

COMMISSIONER HUNT BRISBANE, 4 MAY 2016

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

[1] This matter concerns an application made by Alpha Flight Services Pty Ltd t/a Alpha Flight Services for leave in relation to the appearance of a legal representative at an unfair dismissal hearing in Brisbane on 12 May 2016.

[2] Alpha Flight Services has made an application pursuant to s.596 of the Fair Work Act 2009 (the Act)for permission to be represented at the hearing by a lawyer. Ms Jisu Jeong, the Applicant objects to Alpha Flight Services being granted leave to be represented by a lawyer.

[3] The parties were directed to file submissions addressing the issues for consideration by the Fair Work Commission (the Commission) in s.596 of the Act.

[4] Section 596 of the Act provides as follows:

“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.”

[5] With regard to s.596(2)(a), Alpha Flight Services submits:

(a) The facts are not, in isolation complex, however there are complexities that would be dealt with more efficiently by its lawyer;

(b) Ms Jeong was summarily dismissed for misconduct, requiring Alpha Flight Services to demonstrate the conduct amounted to misconduct warranting summary dismissal;

(c) The Commission will need to consider and interpret the terms of the employee handbook;

(d) It will be necessary for the Commission to assess the credit of witnesses, and cross-examination of witnesses will occur;

(e) Alpha Flight Services is likely to request the Commission not admit into evidence some material filed by Ms Jeong, or make submissions as to the weight of evidence that should be given to Ms Jeong’s material which Alpha Flight Services does not consider relevant to the proceedings;

(f) The outcome of the hearing has significant precedent implications for Alpha Flight Services and employers generally; and

(g) If leave was not granted, Alpha Flight Services’ Human Resources Manager would be required to represent the Respondent, and given the complexity of the matter, would not be in a position to represent Alpha Flight Services effectively or to assist the Commission to deal with the matter efficiently.

[6] With regard to s.596(2)(b), Alpha Flight Services submits:

(a) Its Human Resources Manager has never appeared in the Commission and does not have any experience in advocacy or in similar matters;

(b) There are no other employees who could effectively represent Alpha Flight Services; and

(c) Accordingly it would be unfair not to allow Alpha Flight Services to be legally represented because it is not able to effectively represent itself.

[7] With regard to s.596(2)(c), Alpha flight Services submits:

(a) Ms Jeong is to be represented at the hearing by her domestic partner, Mr Shaun Greenwood. Although not legally qualified, Mr Greenwood’s attendance at the hearing would negate any alleged unfairness to Ms Jeong if Alpha Flight Services is granted permission to be a represented by a lawyer.

[8] Ms Jeong submits:

(a) She has not engaged legal representation as it is beyond her financial means;

(b) Mr John George, a family friend and retired business executive in the services industry (with no legal qualifications or training) has offered to represent her at the hearing;

(c) The matters to be determined are not complex; they are simple and uncomplicated. Ms Jeong admits wrongdoing in her employment and accepts that Alpha Flight Services was entitled to take some form of disciplinary action against her. Termination of her employment was too harsh for the offence;

(d) Alpha Flight Services has a reasonably large human resources department with trained and qualified specialists. This is itself an advantage over Ms Jeong;

(e) Alpha Flight Services has used a lawyer to prepare its evidence which is an advantage; and

(f) A letter sent by Alpha Flight Services (through its lawyer) threatening a costs application in relation to this matter has aggravated Ms Jeong’s anxiety and depression. The use of a lawyer during the hearing will add to Ms Jeong’s state of distress.

Consideration

[9] 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)...”

Conclusion

[10] The decision to allow a party to be represented in a matter is discretionary, it is not automatic. The discretion afforded to the Commission will be exercised on the facts and circumstances of the particular case against the legislative tests. 2

[11] I have concluded that permission for Alpha Flight Services to be represented by a lawyer will enable the matter to be dealt with more efficiently taking into account the complexity of the matter. This is because there are matters to be determined as to whether the conduct of falsifying a date on a medical certificate in order to return to work one day early should, in these circumstances, constitute misconduct warranting summary dismissal.

[12] I consider the issues that will be put to me will be sufficiently complex having regard to the written submissions of Ms Jeong of alleged intimidation, bullying, harassment and threats to her employment whilst employed. Ms Jeong’s submissions also go to claims that she was not given prior notification of meetings held with her, and a failure to allow Ms Jeong a support person at the meetings.

[13] I am satisfied that while Alpha Flight Services is a relatively large employer with a dedicated human resources team, the most senior human resources employee who might otherwise have represented the Respondent has had no experience at all before the Commission. A lack of experience before the Commission is not in and of itself a satisfactory reason to grant permission for legal representation. However in these circumstances, I am satisfied the assistance of Alpha Flight Services’ legal representative will allow the hearing to be conducted more efficiently given the complex issues to be determined.

[14] With regard to Ms Jeong’s concerns with respect to a letter sent by Alpha Flight Services (though its lawyer) flagging an application under s.611 of the Act if the application is dismissed by the Commission, the Respondent is within its rights to correspond with Ms Jeong. Foreshadowing a costs application to be made to the Commission in the event the application is dismissed does not constitute an attempt to intimidate and bully, as submitted by Ms Jeong. It is expected that the communication be professional and courteous.

[15] All necessary and appropriate assistance will be afforded by the Commission to Ms Jeong and her representative at the hearing to ensure procedural fairness, and that there is no disadvantage by any lack of understanding of issues or hearing processes.

[16] For the reasons set out above, I exercise my discretion under s.596 (1) of the Act to grant permission for Alpha Flight Services to be represented by a lawyer.

COMMISSIONER

 1 [2013] FCA 291.

 2   Rodgers v Hunter Valley Earthmoving Company Pty Ltd [2009] FWA 572.

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