[2020] FWC 2616

FAIR WORK COMMISSION

DECISION

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

Mr Colin McKerlie
v
RateIt Australia Pty Ltd T/A RateIt
(U2020/1211)

DEPUTY PRESIDENT BOYCE

SYDNEY, 3 JULY 2020

Application by Respondent for permission to be legally represented under s.596 of the Fair Work Act 2009 – Applicant unrepresented – Applicant a former lawyer struck off the roll of legal practitioners due to his criminal convictions – Applicant has engaged in wide ranging post-employment communications with the Respondent’s employees, customers, suppliers and potential investors – content of communications corrosive and threatening – not acceptable for Respondent’s employees to be both witness and advocates at hearing – discretion under s.596 not limited to matters set out in s.596(2) – Applicant’s post-employment conduct highly relevant to determination in this matter – permission for Respondent to be legally represented granted.

[1] On 5 February 2020, the Applicant, Mr Colin Robert McKerlie (Mr McKerlie), lodged an application for an unfair dismissal remedy (Unfair Dismissal Application). Mr McKerlie alleges that he was “dismissed” on 21 January 2020, by RateIt Australia Pty Ltd (Respondent), and that such dismissal was unfair and contrary to Part 3-2 of the Fair Work Act 2009 (Act).

[2] On 13 May 2020, Mr McKerlie made an application for me to recuse myself from further involvement in these proceedings (Recusal Application). The Recusal Application was heard on 15 May 2020, and my decision is reserved.

[3] This decision concerns only my reasons for having determined that permission be granted to the Respondent to be legally represented in these proceedings pursuant to s.596 of the Act.

Jurisdictional Objections

[4] The Respondent has raised two jurisdictional objections to Mr McKerlie’s Unfair Dismissal Application:

(a) firstly, the relationship between Mr McKerlie and the Respondent was that of independent contractor and principal, and not that of employee and employer. Mr McKerlie was therefore not a “national system employee” within the meaning of the Act, and thus not protected by the unfair dismissal provisions of the Act ; and

(b) secondly, in the alternative, and in the event that the Commission finds that the relationship between the parties was that of employer and employee, the dismissal of Mr McKerlie was a case of a “genuine redundancy” within the meaning of s.389 of the Act. On this basis, the Commission lacks the jurisdiction to hear and determine Mr McKerlie’s claim alleging unfair dismissal.

(collectively, Jurisdictional Objections).

Procedural background

[5] The matter was initially programmed for conciliation on 25 February 2020. However, on 24 February 2020, Mr McKerlie wrote to the Commission and requested that the matter be immediately set down for arbitration.

[6] On 27 February 2020, the matter was allocated to my Chambers to retain carriage of the matter for hearing.

[7] On 28 February 2020, MKI Legal (a law firm) wrote to my Chambers and informed the Commission that it sought to act in the proceedings on behalf of the Respondent.

[8] On 2 March 2020, my Associate responded to MKI Legal on my behalf, whereby I directed the Respondent to file a Form F53 (Notice of representation) and a Form F3 (Response to an unfair dismissal application) as a matter of urgency.

[9] On 4 March 2020, Mr McKerlie filed submissions opposing the Respondent’s application to be represented by MKI Legal.

[10] On 6 March 2020, I issued directions, whereby parties were to file materials regarding the Jurisdictional Objections, and the issue of the Respondent’s request for permission to be legally represented. 1

[11] Both Mr McKerlie, and the Respondent, prior to the hearing on 8 May 2020, filed extensive written submissions on the question of whether the Respondent ought to be granted permission to be legally represented in these proceedings. 2 I considered and had regard to all of those submissions and evidence in making my determination to grant the Respondent permission to be legally represented in these proceedings. I was also able to consider and have regard to all of the written submissions and evidence filed by the parties on the Jurisdictional Objections, given that all such written submissions evidence had been filed and served by the end of April 2020.

[12] On 8 May 2020, I held a hearing (by telephone) regarding the Jurisdictional Objections raised by the Respondent. Mr McKerlie appeared for himself. Mr Marouchak (Solicitor, MKI Legal) appeared for the Respondent.

[13] I made it clear to Mr McKerlie, at the commencement of the hearing, that I had already determined that I would be granting the Respondent permission to be legally represented in these proceedings. Despite this determination, Mr McKerlie made further oral submissions opposing the grant of permission.

Relevant considerations to be made when determining permission to be legally represented under s.596 of the Act

[14] Section 596 of the Act (relevantly) reads:

“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.”

[15] It is trite that I must actively consider the matters set out under s.596(2) of the Act in making my determination as to whether or not to grant permission to a party to be legally represented in proceedings. But the terms of s.596, and the nature of the discretion to be exercised, in no way limit me to considering only those matters. In other words, the Commission holds a wide discretion, and may take into account any or all of the relevant facts and circumstances of a particular case in determining whether or not to grant permission to be legally represented (i.e. provided the matters under s.596(2) are also actively considered).

The ordinary approach to the determination of a permission to appear request

[16] A Commission Member making a decision as to permission to appear ‘prior’ to a hearing commences is an ordinary, or not uncommon, approach.

[17] As the Commission’s “Practice Note: Lawyers and Paid Agents” 3 (under the heading “The usual Commission process”) states:

“[34] The following paragraphs describe the usual process for the Commission to deal with a request for permission to be represented by a lawyer or a paid agent in a conference or hearing conducted by a Member. This process may not be followed in every case.

[35] Once a person has given notice that they will seek permission, where practicable, the Commission will direct the person to lodge and serve on the other parties a written submission of no more than 2 pages that identifies:

- the lawyer or paid agent the person is seeking permission to have participate in the conference or hearing; and

- the reasons why permission should be granted, having regard to the criteria in s.596(2) of the Act (see paragraph 40).

[36] The other parties will then be given an opportunity to respond in writing, indicating whether they oppose the request for permission and, if so, the reasons why they oppose it. Where practicable, the Commission will decide whether to grant permission and advise the parties of its decision prior to the conference or hearing.”

[18] Whilst, in the discretion of a Commission Member, the ordinary approach may be departed from, I did not consider any departure from same necessary or appropriate in these proceedings. 4 In this regard, in relation to permission to appear, Mr McKerlie filed a two page submission (with 16 separate attachments) on 3 March 2020. He also filed a further 16 page submission (with 17 separate attachments) on 17 April 2020, in response to the Respondent’s five page submissions (with one attachment) dated 27 March 2020.

[19] Having regard to the nature of the factual and legal disputes between the parties (as identified in the Forms F2 and F3), and the written submissions and evidence filed by both parties, in the exercise of my discretion, I determined that I did not need to hear any further argument from the parties as to whether or not I ought to grant the Respondent permission to be legally represented, and that I could determine the resolution of the issue on the material already before me (i.e. prior to the hearing).

Section 596(2)(a) – Legal representation of the Respondent would enable the proceedings to be dealt with more efficiently, taking into account the complexity of the matter

[20] The hearing conducted on 8 May 2020 concerned the resolution of two jurisdictional issues.

[21] In determining that the complexity of the issues in this matter weighed in favour of the Respondent being granted permission to be legally represented (in order to enable the matter to be dealt with more efficiently before the Commission), I concur with, and rely upon, the well-worn words of Senior Deputy President Richards in Plumbing and Allied Services Union of Australia v UGL Resources Pty Ltd: 5

“It appears to me that where the Respondent (in this case) seeks to agitate a jurisdictional issue then it would follow that representation by a lawyer would be a reasonable course. Jurisdictional issues by their nature are prospectively complex in their own right, and/or else may require a degree of familiarity with court and tribunal jurisprudence or authorities”. 6

[22] One of the jurisdictional issues in this matter concerns whether the relationship between the parties is one of independent contractor and principle, or employer and employee. To make a determination on this issue, I am required to conduct a broad analysis of the facts, as they concern a range of legal principles (including the application of the relevant factual circumstances to a multi-factor legal test). 7 Mr McKerlie signed an independent contractor agreement with the Respondent on 14 November 2018.8 There is also evidence of Mr McKerlie invoicing the Respondent for services performed by him on behalf of the Respondent.9 In my view, the resolution of the independent contractor verses employee issue in these proceedings is complex, in that there is evidence pointing both ways that must be weighed by me against the relevant legal principles.

[23] The other jurisdictional issue, whether Mr McKerlie’s dismissal was a case of “genuine redundancy”, whilst not a complex issue in itself, is complicated in this case by virtue of it being advanced as an argument in the alternative to the independent contractor versus employee jurisdictional issue. In resolving such an issue, I have also been asked by the parties to determine whether Mr McKerlie’s employment was covered by a modern award (so as to determine whether award consultation obligations apply). 10 In making a finding as to award coverage, issues of construction of award coverage terms and classifications (by reference to relevant facts in issue) will arise. I note that there is no agreement between the parties as to award coverage.

[24] In my view, each of the jurisdictional issues raised in this matter are by themselves complex. Such complexity is further exacerbated and/or compounded by the manner in which the genuine redundancy jurisdictional argument is being advanced on an alternative basis.

[25] In the circumstances of this case, I considered that the granting of the Respondent permission to be legally represented in these proceedings would enable the matter to be dealt with more efficiently, taking into account the complexity of the matter. I also considered that I would be assisted in resolving the Jurisdictional Objections, and related issues concerning same, by the Respondent being legally represented.

Section 596(2)(b) – The Respondent is not able to represent itself in these proceedings, and it would be unfair not to allow the Respondent to be legally represented

[26] On the evidence, and in the facts and circumstances of this case, I did not consider that the Respondent was in a position to have one of its directors, officers or employees represent it in these proceedings. I relied upon the Respondent’s submissions going to this issue, 11 as supported by the evidence of the Respondent’s witnesses.12 It follows that I determined that it would be unfair in this matter (involving contested issues on the evidence, and the law), not to grant the Respondent permission to be legally represented.

[27] Further, given the fact that all of the Respondent’s employees (who might possibly be said to be capable of representing the Respondent in these proceedings) are witnesses, in the circumstances of this case, I did not consider that it would be acceptable to have such witnesses also appear as an advocate/s. The difficulties evident in a person acting as both a witness, and an advocate (and the undesirability of same in contested proceedings) were identified in Wong v Dong Lai Sun Massage Pty Ltd T/A Dong Lai Sun Massage and Beauty: 13

“One other hurdle to effective representation by Ms Vong is that she would be both advocate and witness in the proceedings. It is evident from the content of Vong’s February 2015 Affidavit that she has as much regard to her personal position as she does to that of the corporation: witness, for example, her setting out of her own financial position, but not that of Dong Lai. The undesirability of a person being both witness and advocate in a case such as this where the facts are not simple, and where serious allegations of impropriety are likely to arise, means that there may be that confusion between a person’s role as a witness and an advocate which would colour the independence and objectivity usually required of an advocate (and in particular a lawyer because of their role as an officer of the Court) which is necessary for truly effective representation of a party: Alcantara at [23] per Lucev FM, and the cases there referred to”. 14

[28] In my view, the foregoing difficulties loomed large in these proceedings (also noting what I have set out in the paragraphs below as to the serious allegations of impropriety made by Mr McKerlie against the Respondent and some of its employees). I considered that such matters weigh heavily in favour of the Respondent being granted permission to be legally represented in these proceedings.

Section 596(2)(c) of the Act - Mr McKerlie is a former lawyer (removed from the roll of legal practitioners due to his criminal convictions)

[29] Section 596(2)(c) of the Act requires that in determining whether to grant a party permission to be legally represented, I must actively consider whether it would be unfair not to allow a party to be represented, taking into account fairness between the person (Party A) and other persons (Party B etc) in the same matter. It was therefore necessary that I considered the qualifications, training and experience of Mr McKerlie (Party B), as compared to any other person in the Respondent’s (Party A’s) employ (who might have been in a position to represent the Respondent in these proceedings).

[30] The Respondent highlighted that Mr McKerlie, in his written submissions opposing permission for the Respondent to be legally represented in these proceedings, did not bring to the Commission’s attention that he is a former lawyer. Instead, the Respondent pointed out that Mr McKerlie presented himself to the Commission (in his s.596 written submissions) as simply an unrepresented employee applicant.

[31] In terms of his admission as a lawyer, Mr McKerlie was formerly admitted as a Solicitor in the States of Western Australia and South Australia. However, as identified in the Respondent’s submissions (dated 27 March 2020):

(a) in 2007 Mr McKerlie was removed from the roll of Legal Practitioners in the State of Western Australia; 15

(b) in 2008, Mr McKerlie was removed from the roll of Legal Practitioners in the State of South Australia; 16

(c) the reasons for Mr McKerlie’s removal from these rolls of Legal Practitioners were his criminal convictions on 14 May 2004 (in the District Court of Perth, Western Australia), on one offence of indecent assault, and on two offences of sexual penetration without consent;

(d) Mr McKerlie was sentenced to a total concurrent sentence of 4 years and 8 months' imprisonment in respect of these offences;

(e) before the Full Court of the Supreme Court of Western Australia in 2007, were also a large number of findings as to unprofessional conduct in which adverse findings had been made against Mr McKerlie; and

(f) Mr McKerlie’s appeals against all of his criminal convictions (for indecent assault and sexual penetration without consent), and the sentences imposed upon him in respect of such convictions, were dismissed by a Full Bench of the Western Australian Criminal Court of Appeal on 15 December 2006. 17

[32] In an email to all of the Respondent’s employees dated 18 March 2020 18, Mr McKerlie brings up his criminal convictions, and suggests that the Respondent’s employees take an alternative view of the circumstances that led to those convictions (i.e. an alternative view to the findings of the Court, which were not disturbed on appeal). Mr McKerlie’s email (relevantly) reads:

“A month later, an exceptionally beautiful young woman appeared at my front door saying she was answering my ad for a flatmate, saying she was being kicked out of the place she was living now and it was urgent, saying she really loved the place (it was a fabulous house!) and begging me to let her move in. Over dinner the next night, she told me she was trying to get away from her boyfriend who beat her up and who had threatened her with a gun. I said I would take care of her. The next morning she accused me of rape”.

“You’re free to think what you like about this. There are a number of people who worked at RateIt with me who I really quite liked. In the bigger scheme of things, these were people who I hoped – had it happened in more controlled circumstances – would have heard about my criminal history for the first time and reacted by saying, “I don’t believe Colin would do that”. So I wanted them to have an inkling of the truth. If you, personally, said something like, “Yeah, I always knew there was something off about that guy”. Well, if that’s what you think, Fuck You!”.

[33] This is to be contrasted with the statements of Chief Justice Martin, of the Full Court of the Western Australian Supreme Court, who in summarising the offences committed by Mr McKerlie, stated:

“Sentence was passed by Nisbet DCJ. His remarks at the time of passing sentence are before the Court. In the course of those remarks, he observed that not only did Mr McKerlie's victim have to endure the physical aspects of his assault upon her, the memory of which she would carry with her for a very long time, but she also had to endure the assault upon her character which he had perpetrated in the running of his defence, a defence which, in his Honour's view, the Crown prosecutor correctly described as a farrago of lies”. 19

[34] Whilst not contained in his written submissions in relation to s.596 of the Act, in his email to all of the Respondent’s employees on 18 March 2020, Mr McKerlie states:

“Now I was one of the most widely experienced and highly trained litigation lawyers in Australia before I walked away from the legal profession”. 20 (my emphasis)

“For 18 years I practised as a criminal lawyer, for defendants and as a prosecutor in three different jurisdictions, South Australia, Scotland and New South Wales. I am the only Procurator Fiscal Depute you’ll meet”. 21

[35] Having regard to the above, I considered that it would be unfair not to allow the Respondent to be legally represented, taking into account fairness between the Respondent’s employees (who are not legally trained or experienced), and Mr McKerlie (who is legally trained and experienced).

Mr McKerlie’s post-employment conduct is relevant to my determination under s.596 of the Act

[36] As I have already stated, the terms of s.596, and the nature of the discretion to be exercised, do not limit me to considering only those matters set out under s.596(2) of the Act.

[37] On 21 January 2020, Mr McKerlie’s engagement with the Respondent ceased. Since that date, Mr McKerlie has engaged in numerous forms of communication with the Respondent’s employees, and its customers, suppliers and potential investors.

[38] Conduct of an employer or employee post a dismissal may or may not be a relevant consideration under s.596 of the Act. In these proceedings, for the reasons that follow, I considered Mr McKerlie’s post-employment conduct of significant relevance to my determination to grant the Respondent permission to be represented by a lawyer in these proceedings.

Mr McKerlie’s email of 6 February 2020 to all of the Respondent’s employees

[39] On 6 February 2020, post his engagement with the Respondent, Mr McKerlie sent out an email to all of the Respondent’s employees. 22 In that email, Mr McKerlie advised employees that he had created a website (dedicated to the Respondent), and that a blog, podcast, book and YouTube channel (again, dedicated to the Respondent) were to follow. He also advised employees (in that email) that he was in the process of supplying information about the Respondent to various investigatory and prosecutorial agencies in Western Australia, Victoria and New South Wales, as well as asking ASIC to ban the Respondent’s directors from being office holders in any Australian proprietary limited company again. Other parts of the email read:

“And yeah – I will pay $1,000 in cold hard cash to the person who supplies me with a recording of tomorrow’s FriYay! [meeting] $1,500 if you can also get a copy of my Fortnite FriYay! – which I guess might have been deleted …”

“If any of you have a complaint about what I am doing now – you can go and get fucked!”. 23

Mr McKerlie’s text message to the Respondent’s employees

[40] A text message, sent by Mr McKerlie post his engagement with the Respondent (to other employees of the Respondent), reads:

“I’m looking for a spy at RateIt. I’m gradually contacting every significant customer and every company I know RateIt was chasing, but pissing on new meetings before they happen would be a lot of fun. I’ll pay $50 for very new deal created in Hubspot with the name of the prospect so I can confirm the meeting has been made. Ten meetings is $500 – that’s a good night out. You may as well cash in while you can! The LLS contract is getting referred to the ICAC. I predict the company folds by the end of March. Text me if you want in. But be quick! I only need one spy!”. 24

Mr McKerlie’s email of 18 March 2020 to all of the Respondent’s employees

[41] On 18 March 2020, post his engagement with the Respondent, Mr McKerlie sent another open email to employees of the Respondent titled “The Truth About Me – Colin McKerlie”. 25 That email included statements from Mr McKerlie, such as:

“Having grown up in the western suburbs of Sydney in the Sixties, joined the cadets, joined the Army Reserve, spent my life confronting members of the Mafia, bikies, professional criminals, drug dealers and any bully I have ever encountered in any circumstance, it might not surprise you to learn that I am a very dangerous man. I am absolutely enthusiastic about the use of violence in the appropriate circumstances”.

“The new, corrupt, idiot, Labour Attorney General [Jim McGinty MP] happened to be my local member, in Fremantle, and he refused to meet me – worthless scum, a man I would happily punch into a coma”.

“If some AG [Attorney General] ever does remove habeas corpus, I’ll happily assassinate them”.

“See, there are two things – at least – about the current situation which The Pixie-in-Chief clearly has no clue. The first is, the precedent from my online journalistic campaign against him was my incredibly successful, brutal and fearless attack on the Premier and AG of Western Australia in 2001. The second is, I planned for my criminal history to become public as an outcome of my campaign against [name of Respondent employee withheld]. I’ve been planning that part of this time of my life for years. I am about to launch a new challenge to my conviction and [name of Respondent employee withheld] is part of it”.

“This is part of Chapter One of my plan to reclaim my life. If you’re interested, stay tuned. If you have the ear of the Pixie-in-Chief or one of the other Three Stooges of RateIt, let them in on the reality that I have confronted and fucked over men and groups of men who make them look like the pathetic imbeciles and children they really are. I am going to make an example of [names withheld] – so let them know who they are dealing with, because they clearly have no clue about the reality that confronts them right now. I am so, fucking annoyed!” 26 (emphasis in original).

Mr McKerlie’s website (dedicated to the Respondent)

[42] Mr McKerlie’s website, created by Mr McKerlie a couple of weeks post his engagement with the Respondent, is dedicated to making scandalous allegations against, and otherwise slandering, the Respondent and some of its employees. One of the banners on the website reads: “Your Step-By-Step Guide: How To Destroy An Arsehole Employer”. 27

[43] In posts by Mr McKerlie on this website, he makes various discriminatory (including homophobic) comments about employees of the Respondent, and also states:

“So I am going to totally fucking destroy all of them. And you get to watch! Fun! Hey!”, “I am going to teach [name of Respondent employee withheld] the hardest lesson of his pathetic life”. 28

Mr McKerlie’s emails of February 2020 to the Respondent’s customers, suppliers and investors

[44] The Respondent has also tendered email evidence of Mr McKerlie, in February 2020 (post his engagement with the Respondent), contacting various customers (including potential customers), and/or suppliers of the Respondent, and/or potential investors of the Respondent, slandering the Respondent, and its employees. 29 The emails authored by Mr McKerlie are titled “RateIt is a criminal operation. You should cancel your contract immediately”30, and within their body:

(a) allege “serious criminal conduct” by the Respondent and its employees; and

(b) advise that Mr McKerlie is about to begin an extensive media campaign against the Respondent concerning corruption and bribery. 31

Mr McKerlie’s LinkedIn message to persons or organisations attending a conference involving the Respondent

[45] Mr McKerlie, post his engagement with the Respondent, has also sent LinkedIn messages to persons who are or might be attending a conference involving the Respondent, advising that he will be writing to every speaker and every company with a logo on the conference website telling them about the Respondent’s involvement in illegal bribery. He states that he wants everyone to know the story. The LinkedIn message in evidence is titled “Hi [name withheld] going to the [conference title withheld]? You’re going to be a talking point!”. 32

Mr McKerlie’s post-employment conduct taken into account by me under s.596 of the Act

[46] In determining to grant the Respondent permission to be legally represented in these proceedings, I took into account the corrosive and threatening tenor of Mr McKerlie’s wide ranging post-employment communications. Given the contents of those communications, I did not consider that it would be efficient, effective, fair or reasonable to have an employee representative of the Respondent (as an advocate) engage directly with Mr McKerlie at a hearing. Indeed, given the evidence as to the relationship between the parties (including Mr McKerlie’s extraordinary post termination targeting of the Respondent and its employees), I formed the view that there is simply no basis upon which it could be reasonably suggested that it would assist the Commission for one of the Respondent’s employees (acting in the capacity of an advocate) to be going ‘head to head’ with Mr McKerlie at the hearing.

Mr McKerlie’s submissions opposing permission

[47] In Mr McKerlie’s written submissions, as filed and served by him prior to the hearing on 8 May 2020, he makes a wide range of allegations against MKI Legal, including as to purported misleading and deceptive conduct, acting without instructions, making false representations, engaging in extortion, engaging in unprofessional conduct, ignoring conflicts of interest, engaging in a conspiracy to defeat justice, fabricating evidence, intimidating witnesses, and “weaponis[ing]” the Commission’s jurisdiction by sending Calderbank offers to set up subsequent applications for costs orders against Mr McKerlie.

[48] As I stated to Mr McKerlie during the hearing on 8 May 2020, his allegations against MKI legal are not matters that need to be resolved as part of my determination under s.596 of the Act:

“MR McKERLIE: All of this conduct is on a scale that runs from incompetent through unprofessional to outright criminal. And that all of this conduct - and I'll just make the point that my allegations contained in my statement and my submissions have simply been ignored, which is what leads me to submit that the motivation for this course of conduct is to create this underlying prejudice that what I submit to the Tribunal is it's beneath the respondent's solicitors to either acknowledge it or respond to it and that it's just a rolling course of impropriety which should disbar them from further conduct - from further conduct - representation in the proceedings.

THE DEPUTY PRESIDENT: Okay. Well, Mr McKerlie, having heard all that, none of it gives rise to issues that are required for me to determine. If there's any complaints or issues with the solicitors it's not for the Fair Work Commission to resolve. Nor is it for the Commission to resolve, you know, various disputes that have occurred [between] the parties - - -

MR McKERLIE: Well - - -

THE DEPUTY PRESIDENT: - - - prior to this matter coming on. All I have to deal with is jurisdictional objections today. And as I've said, I've already determined under section 596 of the Act, that it would be more efficient, given the complexity of some of the arguments and issues being raised, [that] go to jurisdictional questions for the respondent to be represented. And I note that they have some evidence in their [the Respondent’s] evidence that was already filed going to the capacity for the respondent to represent itself. So I don't want to - - -

MR McKERLIE: Well - - -

THE DEPUTY PRESIDENT: - - - sort of have these proceedings derailed by getting into some of the allegations you're currently making.

MR McKERLIE: Well, Mr Deputy President, with respect, you have inherent jurisdiction to govern the proceedings before you. And in my submission, it would be grossly improper to allow this behaviour to go without sanction. I can also inform you that the Australian Federal Police, who I suggest will be one of the appropriate investigating agencies, has written to me, asking me to notify them of your attitude to these matters. And my submission would be that it is incumbent upon you to give consideration to my submissions and the evidence I've submitted in support of them and make a determination with regard to those submissions.

THE DEPUTY PRESIDENT: Well, I'm not going to and you know, you can inform the police whatever you wish to inform them on. But I'm here to deal with the jurisdictional objections based upon the evidence that's been filed and the submissions that have been made.

MR McKERLIE: Very well, Deputy President.

THE DEPUTY PRESIDENT: As I said, it's not - I'm not the Law Society. It's the Fair Work Commission dealing with jurisdictional objections concerning an unfair dismissal.

MR McKERLIE: Very well, Mr Deputy President. What I'd suggest then is, given that what you're saying is that the issue of representation and my submissions with regard to the particularities of the respondent's solicitors representation either have been dealt with or aren't going to be dealt with, then it's over to the respondent to argue their case with regard to jurisdiction.

THE DEPUTY PRESIDENT: Well, all I can say is that I'm required to determine whether permission to appear is granted to the respondent's lawyers.

I do so on the basis of the nature of the case before me. I'm certainly not aware of any conduct in the respondent's solicitor's interactions with the Commission that would lead me to make a finding or to re-traverse my decision or to withdraw permission, in these proceedings.

So the focus of 596 is what are the issues, and they have complexity, will the proceedings be conducted more efficiently and will there be any disadvantage? Along fairness grounds as to the respondent being entitled to represent or be represented by a legal representative and as I've said, I've made a decision on that.

Today's set down for a hearing on jurisdictional questions which really - whilst matters of law, very much are determined according to the relevant facts that underlie those objections.

So I'd like to proceed with the jurisdictional objections and I note that there's two. One is that the applicant is not an employee and therefore, the Commission has no jurisdiction because however the relationship between the parties ceased, the applicant wasn't an employee.

And then secondly, the respondent says in the alternative, even if that issue is found against them, that there was a redundancy which was a genuine redundancy within the meaning of section 389 of the Fair Work Act, then I suppose another limb ---” 33

[49] Finally, it is also appropriate to note that my determination under s.596 is limited to determining whether to grant the Respondent permission to be legally represented at the hearing of these proceedings. This is to be contrasted with the following relief sought by Mr McKerlie:

“The Applicant seeks orders to redress the conduct of the Respondent's solicitors including but not limited to an order that the Respondent instruct new solicitors drawn from a list provided by the Fair Work Commission and subject to the ongoing monitoring of the Commission in their communications with the Applicant”. 34

“The Respondent's legal representatives, MKI Legal, shall forthwith file a Notice of

Ceasing To Act on behalf of the Respondent and shall take no further role in the conduct of these proceedings.

The Respondent shall file and serve all bills of costs tendered to the Respondent by MKI Legal in any way incurred in regard to these proceedings or any other potential proceedings or actions by the Respondent or the Applicant with the Commission and on the Applicant.

MKI Legal shall forthwith repay any monies paid by the Respondent to MKI Legal for any services which in any way relate to the Applicant, these proceedings and any other potential proceedings between the Applicant and the Respondent.

The Respondent's application for permission to have legal representation in these

proceedings is denied and dismissed.

Or, in the alternative:

The Respondent is granted permission to have legal representation in these proceedings but under no circumstances will the Respondent be awarded costs of any nature in these proceedings against the Applicant.

MKI Legal shall forthwith pay to the Applicant the amount paid by the Applicant to

Maurice Blackburn Lawyers for legal advice regarding the conduct of these proceedings

upon the Applicant's delivery of their bill of costs and receipt for monies paid, and [sic] amount of $690.00”. 35

[50] As Mr Marouchak, on behalf of the Respondent pointed out in respect of the above relief, Mr McKerlie appears not to oppose permission for the Respondent to be legally represented in these proceedings, so long as it is not MKI Legal. 36 However, what legal representative appears on behalf of the Respondent is simply not a choice for Mr McKerlie to make. If Mr McKerlie has complaints in relation to the conduct of MKI Legal, concerning his interactions with MKI Legal outside of these proceedings, he may take up such matters with the relevant Law Society.37 These unfair dismissal proceedings are not the forum for such matters to be agitated, let alone resolved.

[51] As part of his Recusal Application, Mr McKerlie alleges that my decision to grant permission to the Respondent to be legally represented is infected by actual bias. I will be dealing with this bias allegation as part of my decision (to be made in due course) on the Recusal Application.

DEPUTY PRESIDENT

Appearances:

The Applicant, Mr Colin Robert McKerlie, appeared for himself.

Mr Nicholas Marouchak, Solicitor, MKI Legal, appeared with permission, on behalf of the Respondent.

1 At the parties’ request, the matter was programmed for conciliation before another member of this Commission. That conciliation (before Deputy President Cross) was held on 25 March 2020, but failed to resolve the matter. The matter thus reverted back to the directions I had previously made on 6 March 2020.

2 Mr McKerlie filed a two page submission (with 16 separate attachments) dated 3 March 2020. He also filed a further 16 page submission (with 17 separate attachments) on 17 April 2020, in response to the Respondent’s five page submissions (with one attachment) dated 27 March 2020.

3 See: Note s.590 of the Fair Work Act 2009.

5 [2012] FWA 2966.

6 Ibid, at [23].

7 See, for example, Amita Gupta v Portier Pacific Pty Ltd; Uber Australia Pty Ltd t/a Uber Eats[2020] FWCFB 1698.

8 Annexure A to Form F3.

9 Statement of Andrew Titheridge, 27 March 2020, at [14].

10 See s.389(1)(b) of the Fair Work Act 2009.

11 Respondent’s submissions, 27 March 2020, at [9]-[14].

12 Witness statement of Michael Momsen, at [59]-[60]; Witness statement of Penelope McKelvie, at [5]-[8].

13 [2016] FCCA 18.

14 Ibid, at [54]. “Ms Vong” was a director of the Respondent in this case, seeking leave to represent the corporate entity.

15 Legal Practitioners Complaints Committee v McKerlie [2007] WASC 119, 21 May 2007, Full Bench: Martin CJ, Simmonds and Blaxell JJ.

16 The Law Society of South Australia v McKerlie [2008] SASC 222, 12 August 2008, Full Court: Bleby, Gray and Layton JJ.

17 McKerlie v State of Western Australia [No 2] [2006] WASCA 274 (15 December 2006).

18 Email dated 18 March 2020 from Mr McKerlie to staff of Respondent, filed with the Respondent’s submissions on permission to appear dated 27 March 2020.

19 Legal Practitioners Complaints Committee v McKerlie [2007] WASC 119, 21 May 2007, Full Bench: Martin CJ, Simmonds and Blaxell JJ, at [3] to [6].

20 Email dated 18 March 2020 from Mr McKerlie to staff of Respondent, filed with the Respondent’s submissions on permission to appear dated 27 March 2020.

21 Ibid.

22 Annexure C to Form F3

23 Ibid.

24 Annexure D to Form F3.

25 Email dated 18 March 2020 from Mr McKerlie to staff of Respondent, filed with the Respondent’s submissions on permission to appear dated 27 March 2020.

26 Ibid.

27 Annexure B to Form F3.

28 Annexure B to Form F3.

29 Annexure C to Form F3.

30 Annexure C to Form F3, Email from Mr McKerlie dated 17 February 2020, 12.47PM.

31 Annexure C to Form F3, Email from Mr McKerlie dated 18 February 2020, 12.42PM.

32 Attachment to Form F3.

33 Transcript, 8 May 2020, PN98 to PN121.

34 Mr McKerlie’s Submissions, 3 March 2020.

35 Mr McKerlie’s Submissions, 17 April 2020.

36 Respondent’s submissions, 27 March 2020, at [3](e).

37 I understand Mr McKerlie has already made a complaint about MKI Legal to the Western Australian Law Society.

Printed by authority of the Commonwealth Government Printer

Mr Colin McKerlie v RateIt Australia Pty Ltd T/A RateIt