Mr Anthony Ellem v Gladstone Area Water Board

[2015] FWC 5603

[2015] FWC 5603

FAIR WORK COMMISSION

DECISION

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

Mr Anthony Ellem
v
Gladstone Area Water Board
(U2015/5314)

COMMISSIONER BOOTH BRISBANE, 18 AUGUST 2015

Application for relief from unfair dismissal.

[1] This decision concerns an application by Gladstone Area Water Board (the Board) to be represented by a lawyer in an unfair dismissal application brought by Mr Ellem (the Applicant) under section 394 of the Fair Work Act 2009 (the Act).

[2] This decision deals with the question of whether the Fair Work Commission (the Commission) should grant permission to the Board to be represented by a lawyer or paid agent.

[3] The Applicant objects to the representation. Both parties have filed written submissions. The parties agree that the matter can be determined based on the written material.

The Law

[4] Section 596 of the Act provides guidance and as to when the Commission may grant permission for a person to be represented by a lawyer paid agent.

[5] Section 596 of the Act provides:

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] Justice Flick considered s.596 in Warrell v Fair Work Australia [2013] FCA 291:

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 …

Background and Submissions

[7] The Applicant submits that his dismissal was a result of a complaint made to the Queensland Crime and Corruption Commission (CCC) alleging wrongdoing related to recruitment to a position under the Board. He suggests there were “numerous occasions of deceit, fraudulent misstatements and omissions by several of the executive management team and a Board member. ... The wrong doings extended to a number of the Board’s employees”.

[8] He asserts he was dismissed for purportedly not following policies and procedures, and raises comparators, being other instances of senior employees breaching policies and procedures but not being disciplined.

[9] The Applicant suggests that officials of the Board appear to have made false statements in statutory declarations, and that “there was deceit and fraudulent misstatements by [a named person]”.

[10] The Applicant intends to call 6 witnesses, or to have the Commission compel their attendance. He suggests the hearing would require 2 sitting days.

[11] The Board submitted that the matter involved factual complexity in terms of the number of events and people involved, the number of witnesses intended to be called, the likelihood of cross examination traversing irrelevant or impermissible matters, possibly including those beyond jurisdiction, and the extended time period over which the relevant facts occurred. It states that corrupt conduct allegations extends to a number of employees, and that the Applicant has foreshadowed his intention to revisit the substance of his complaint and the CCC investigation. The Board submits that this Commission has no jurisdiction to look to the substance of the CCC complaint and investigation.

[12] Further, the Board argues that unusual legal issues are involved. The Applicant asserts “criminal conduct under a range of regulatory frameworks, including the CCC legislation, the Criminal Code, and Right to Information”. The Board suggests the Commission would benefit from submissions about these matters.

[13] The Board suggest that at least three hearing days would be required.

[14] The Board also notes that it has “grave concerns of the relevance to the proceedings of at least four of the six witnesses the Applicant has named". Further, the Board "anticipates a dispute over witnesses to be called during the hearing", probably in a preliminary stage.

[15] The Board notes that its solicitors have assisted it from the outset, are familiar with the evidence, and are likely to provide significant assistance to the Commission.

[16] The Board drew attention to cases permitting legal representation for example where separate issues might be conflated, and in order to enhance efficiency in the face of complexity.

[17] Further, the Board submits that, as a small public sector agency, few employees are capable of representing the Board. It suggests there are only two individuals appropriately skilled and qualified, neither of them is appropriate as they both were involved in antecedent matters. The Applicant threatened proceedings against one of the individuals, and the other is likely to be called as a witness by either or both parties.

[18] Accordingly, the Board argues it would be unfair not to allow it to be legally represented because it is unable to represent itself effectively.

[19] The Applicant submits that the dispute is factually simple, but the “termination was a direct result, and the Board’s motives were informed by, a complaint to the CCC”.

[20] He asserts that the previous involvement of the Board’s solicitors is irrelevant, and that if permission is not granted, the Board may still be assisted although not represented at hearing by its lawyers, citing a recent decision of Commissioner Ryan.

[21] He refutes that the two nominated employees who are capable of representing the Board are compromised by their status as witnesses, pointing to the fact that he himself will be a witness. He submits they are well equipped to represent the Board.

[22] The Applicant states that he has just completed the first year of a law degree, and contrasts this qualification to the qualifications of Board employees including the Chief Executive and Corporate Counsel, suggesting that permission to be represented would create an imbalance between the parties, citing Lucas v Sparta Holdings Pty Ltd[2014] FWC 2116 among other decisions.

Consideration

[23] I turn now to the criteria and the two step process required following Warrell v Fair Work Australia.

Complexity

[24] Would permission to appear enable the matter to be dealt with more efficiently, taking into account the complexity of the matter?

[25] I am satisfied that the matter is legally complex for the following reasons.

[26] The Applicant foreshadows traversing possible criminal conduct, or at least misconduct issues. It is possible that witnesses, whether called by him or the Board, may be cross-examined on such matters. This raises issues of potential privilege against self-incrimination, and as suggested by the Board, serious issues as to the relevance of the matter for the Commission’s arbitration of a dismissal dispute.

[27] In my view, that alone makes the matter complex, and potentially more efficient if the Commission were assisted by professional legal representation of one or both parties.

[28] Added to that, as is apparent from the Applicant’s Submissions in response to this application for permission to be represented, the Applicant is of a mind to traverse the content of the complaints and investigations antecedent to his dismissal. There is clear potential for jurisdictional issues to be raised, adding to legal complexity.

[29] While not the subject of submissions, it is possible in that context for claims of public interest immunity and other complex privilege by the Board and even non-parties, including other employees.

[30] The Board presses that these are complex issues over and above the usual factual enquiry and value judgement exercised by this Commission when considering the fairness of the termination.

[31] The Applicant suggests there is no complexity in the factual issues, either in terms of numbers of events and people involved and the time period over which they occurred. He submits the reasons given to the Applicant for his termination, where he failed to follow the Gladstone Area Water Board policies and procedures.

[32] The combination of the relevance of or otherwise of the CCC complaint and the Applicant indicating the intention to seek to adduce evidence relevant to fraud on behalf of some witnesses tends towards a consideration of complexity.

[33] The Board says the Commission is likely to benefit from submissions about those matters and their significance (if any) in its decision making process.

[34] While the decision-making process issues in dismissing the Applicant would, in my view, be unlikely of themselves to be complex, the allegations of criminal conduct across a range of legislation do indeed contribute to the complexity of this matter.

[35] The Board refers to a number of other issues around issues of relevance in particular the evidential difference between the case the Applicant would like to argue and the case properly confined by considerations of relevance.

[36] The Applicant raises an issue of differential treatment compared to that given to other employees.

[37] In Sexton v Pacific National (ACT) Pty Ltd PR931440 Vice President Lawler noted as follows:

[36] In my opinion the Commission should approach with caution claims of differential treatment in other cases advanced as a basis for supporting a finding that a termination was harsh, unjust or unreasonable within the meaning of s.170CE(1) or in determining whether there has been a "fair go all round" within the meaning of s.170CA(2). In particular, it is important that the Commission be satisfied that cases which are advanced as comparable cases in which there was no termination are in truth properly comparable: the Commission must ensure that it is comparing "apples with apples". There must be sufficient evidence of the circumstances of the allegedly comparable cases to enable a proper comparison to be made. …

[38] The challenges of ensuring differential treatment concerning other employees demands not only a cautious approach, but that the Commission can be sure that is there is sufficient evidence to enable a proper comparison to be made.

[39] In my view a claim of differential treatment will be more complex than where no differential treatment is alleged.

[40] I conclude that this case has significant complexity. These complex issues go to the factual issues around the termination, the relevance or otherwise of the CCC referral, the allegations of possible criminal conduct and its relevance to the matter, jurisdictional questions, possible claims of privilege including against self-incrimination and public interest immunity, and the claim of differential treatment.

[41] I consider that legal representation may enable the matter to be dealt with more efficiently taking into account these complex matters.

[42] This enlivens the discretion, but I am still required to decide whether to grant legal representation, as the requirement is not automatically satisfied once one of the three grounds in s.596(2) are satisfied, having regard to considerations of efficiency and fairness rather than the convenience and preference of the parties.

[43] The Board asserts that it is unable to represent itself given its small size and that the two most appropriate employees are named by the Applicant as witnesses and have been intimately involved in the matter previously. It points out that a self-represented Applicant must necessarily be a witness as well as an advocate, that course should be avoided in relation to non-parties to ensure the appropriate level of detachment.

[44] The Applicant says this is irrelevant.

[45] He details the experience of various employees of the Board. It is undisputed that the Board’s employees have significantly more experience than the Applicant, but as the Full Bench said in King v Patrick Projects Pty Ltd[2015] FWCFB 2679 at paragraph [18], “the relevant test is not an assessment of the skills and education of the individual employer representative (Mr Burton), but rather it involves an examination of the resources available to the Board as a whole”. The Board drew attention also to CEPU v UGL Resources Pty Ltd[2012] FWA 2966 to illustrate the proper context of this statement. It also points out that the fact the Applicant is litigating in person is a choice he has made, and he may seek legal representation.

[46] In this case, I am persuaded that the Board cannot fairly represent itself given the wide ranging facts raised by the Applicant and the involvement of the relevant officers outlined above both historically and as witnesses.

[47] No doubt, the Board being represented by lawyers and the Applicant litigating in person creates the potential for imbalance. The requirement to seek permission cannot bar legal representation on the basis of the other party choosing not to be represented or being unable to afford representation.

[48] The task of the Commission, whether there is legal representation or not, is to perform its functions in a fair and just way: s.577. Part of that is to consider potential unfairness between the parties.

[49] I note that the Applicant’s written material is of a high standard, I am confident that he will be able to present his case. There is no indication that he will not be able to represent himself effectively.

[50] While I have concluded there is a difference in legal experience, I also conclude that there is considerable evidentiary and legal complexity. There are potential issues about the admissibility of evidence, jurisdiction to entertain aspects of the Applicant’s case, and suggestions of criminal conduct. The Applicant’s suggestion of differential treatment will add to the complexity of the matter

[51] The matter is demonstrably complex factually and legally, and in my view, it will be dealt with more efficiently by giving permission for the Board to be legally represented. It would be unfair for the Board not to be represented given the wide ranging effect of the Applicant’s application and the previous and future involvement of key employees in this matter.

[52] I exercise my discretion to allow legal representation to the Board.

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