Mr Anthony Delloso v North Queensland X-Ray Services Pty Ltd T/A North Queensland X-Ray Services

[2014] FWC 3064

[2014] FWC 3064

FAIR WORK COMMISSION

DECISION

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

Mr Anthony Delloso
v
North Queensland X-Ray Services Pty Ltd T/A North Queensland X-Ray Services
(U2013/17530)

COMMISSIONER SPENCER BRISBANE, 2 JUNE 2014

Application for relief from unfair dismissal - s596 representation by paid agent.

[1] This decision relates to an application, filed by Mr Anthony Delloso (the Applicant), pursuant to s.394 of the Fair Work Act 2009 (Cth) (the Act). The matter is listed for arbitration in Cairns on 17 and 18 June 2014. The Respondent has applied for permission to be represented by a lawyer or paid agent. The Applicant has objected to such permission being granted. This decision relates to the matter of permission to appear only.

[2] The Applicant is self-represented in these proceedings.

[3] The Respondent has been represented in these proceedings by Mr Gil Muir, Director of Employer Services Pty Ltd.

[4] The Applicant contended that none of the circumstances in which the Fair Work Commission (the Commission) may grant permission for a person to be legally represented were in issue in this matter.

[5] 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.

...”

[6] Mr Muir conceded that he was a “lawyer or paid agent” for the purposes of s.596 of the Act and was therefore required to seek permission to appear. Mr Muir submitted that the discretion to grant representation was a “conditioned” discretion, being conditioned upon those matters contained in s.596 of the Act.

[7] At the time of making submissions to appear, the Respondent had not yet received the Applicant’s materials in relation to the arbitration of the matter. The Respondent submitted however that the matter would likely turn upon findings of fact, which would likely be the subject of cross-examination, and also a consideration of the case law regarding “serious misconduct”.

[8] Mr Muir submitted that the Respondent, while not a small business for the purposes of the unfair dismissal provisions, nevertheless was not a large corporation and did not have dedicated human resources specialists. Mr Muir also submitted that the principal witness in the Respondent’s case would also be the representative of the Respondent if permission was not granted. Mr Muir submitted that representation should be granted as the matter does contain some complexity and the assistance of a paid agent would enable the matter to be dealt with more efficiently.

[9] The Applicant submitted that the matter was not a complex one and did not, therefore, require representation. The Applicant submitted that the Respondent’s Operations Manager, Mr Scott, is required to deal with human resources and industrial relations matters as a part of his role and should be able to deal with this matter.

[10] The Applicant submitted that despite Mr Scott being a principal witness in the matter it does not otherwise affect the matter of representation particularly in considering that the Applicant, as an unrepresented Applicant, is in the same position. The Applicant overall submitted that allowing the Respondent to be represented would introduce an unfairness in the matter.

Consideration

[11] The intent of the Parliament regarding the question of representation is expressed in the following passages of the Explanatory Memorandum published at the time of the Fair Work Bill’s introduction in 2008:

“2291. FWA is intended to operate efficiently and informally and, where appropriate, in a non-adversarial manner. Persons dealing with FWA would generally represent themselves. Individuals and companies can be represented by an officer or employee, or a member, officer or employee of an organisation of which they are a member, or a bargaining representative. Similarly, an organisation can be represented by a member, officer or employee of the organisation. In both cases, a person from a relevant peak body can be a representative.

2292. However, in many cases, legal or other professional representation should not be necessary for matters before FWA. Accordingly, clause 596 provides that a person may be represented by a lawyer or paid agent only where FWA grants permission.

.…2296. In granting permission, FWA would have regard to considerations of efficiency and fairness rather than merely the convenience and preference of the parties.”

[12] The Federal Court in Warrell v Walton 1 considered the matter of permission to appear, pursuant to s.596 of the Act. Justice Flick stated:

“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”.

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...” 2

[13] The application of s.596 of the Act, allows the Commission to exercise a discretion to grant permission in formal proceedings, however, as set out, this 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. 3

[14] I consider there is some complexity to the matter, in particular, there appears to be some factual complexity and dispute between the parties regarding the Applicant’s performance history. I am of the view that efficiency on the current facts and circumstances supports legal representation on this occasion.

[15] I have noted the Applicant’s submission as to fairness between the parties if representation of the Respondent is granted. This submission could weigh against permission being granted but I note that the role of the Member in the Hearing is to ensure fairness and an opportunity to be heard is provided to both parties. This is a matter that a Member of the Commission is required to be mindful of in conducting matters involving unrepresented parties, to accommodate any potential issues of balance between the parties.

[16] Accordingly, on the specific facts and circumstances of this matter, to allow for an efficient, fair and effective hearing of matters of some potential complexity, the Respondent will be granted permission to be represented by a lawyer or paid agent at the Hearing in this matter.

[17] I Order accordingly.

COMMISSIONER

 1 [2013] FCA 291.

 2   Ibid at [24]-[25].

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

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