Mr Geoffrey Grant v Qld News T/A News Corp Australia

[2016] FWC 5280

[2016] FWC 5280

FAIR WORK COMMISSION

DECISION

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

Mr Geoffrey Grant
v
QLD News T/A News Corp Australia
(U2016/5624)

COMMISSIONER SPENCER BRISBANE, 2 AUGUST 2016

Application for relief from unfair dismissal – legal representation.

[1] This Decision involves an application for unfair dismissal remedy made pursuant to s.394 of the Fair Work Act 2009 (the Act). The application was made by Geoffrey Grant (the Applicant). The Respondent is QLD News T/A News Corp Australia.

[2] This Decision is made in respect to the question as to whether the Fair Work Commission (the Commission) should grant permission pursuant to s.596 of the Act for the Respondent to be represented by lawyers or paid agents.

[3] The application was filed on 23 March 2016, the Applicant being self-represented. The Respondent filed an Employer’s Response on 3 May 2016 which listed Mr Daryl Makins, Senior Manager – Employee Relations, as the contact for the Respondent.

[4] On 15 July 2016, Mr Luis Izzo, Director, of Australian Business Lawyers & Advisors filed a F53 – Notice of Representative Commencing to Act for the Respondent.

[5] In response to Directions, both parties have filed material and witness statements in relation to the application for unfair dismissal remedy. The matter had been listed for hearing on 8 August 2016, prior to it being allocated to the Commission as currently constituted.

[6] The matter of permission to appear was outstanding at the time of allocation. Directions were set and the Respondent filed submissions in relation to their application for permission to be legally represented on Monday 1 August 2016. A response was sought from the Applicant.

[7] The Applicant stated in his response filed late on 1 August 2016, that he wanted to provide his response to legal representation, at the hearing of the substantive matter, on Monday, 8 August 2016.

Legislation

[8] 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.

...”

The Respondent’s submissions

[9] The Respondent submitted that the legal representation was warranted. The Respondent outlined that the basis for such included the volume of evidence filed by the parties, predominantly the Respondent’s material, being 4 out of the 6 witness statements.

[10] The Respondent detailed their material as follows:

“{a) 4 witness statements totalling to 42 pages; and
{b) annexures totalling to 190 pages of documentation.”

[11] The Respondent also stated that there has been significant disputation over various subject matters, referring to the argument of the Applicant being that:

“{a) the Respondent dismissed the Applicant in order to avoid an impending redundancy liability owed to the Applicant;

{b) the Respondent's employees were bullying the Applicant's son;

{c) the Respondent's operations had a systemic problem relating to ladder safety;

(d) the Respondent had not attended to previous forklift safety issues;

(e) the Respondent had unlawfully deducted personal leave from the Applicant's
personal leave balances;

(f) the Respondent had treated another employee differently in circumstances that
were similar to those relating to the Applicant's dismissal;

(g) the Respondent's supervisors regularly perform unsafe activities in breach of safety procedures;

(h) the Applicant's conduct was indeed safe, notwithstanding relevant policy breaches;

(i) the Applicant was unaware of the Respondent's procedures regarding safe ladder
usage; and

(j) in relation to the safety incident giving rise to the dismissal, the Applicant's manager conducted herself in a manner that demonstrated that she did not consider the Applicant's conduct to be unsafe.”

[12] The Respondent stated that the Respondent's evidence contests these allegations and proffers different evidence regarding the safety incident, that gave rise to the dismissal. In addition, the Respondent stated that they seek to demonstrate that:

“(a) the Applicant flagrantly breached the Respondent's safety procedures;

(b) the Applicant knew he was in breach of those procedures;

(c) the Applicant's conduct exposed the Applicant to grave risks of serious injury or
death;

(d) the Respondent's treatment of safety issues in the workplace has been consistent;
And

(e) the Applicant's conduct is aggravated by reason of specific awareness training
regarding the use of the Respondent's "inserting drum" (which was the equipment at the centre of the Applicant's safety breach).”

[13] In addition, it was argued by the Respondent, in relation to “efficiency”, which was particularly important, given the timeframe allowed for the hearing being scheduled for Monday, 8 August 2016, that:

“3.1 The importance for efficiency to be achieved in the hearing of these proceedings is magnified given that the hearing of the proceedings is now only listed for one day, 8 August 2016.

3.2 In order for the Commission to hear the testimony of 6 witnesses, together with relevant submissions arising from the evidence, it is likely that the parties will need to traverse the factual matrix and issues in dispute smoothly and efficiently.

3.3 It is respectfully submitted that the contribution of at least one lawyer at the hearing will help to facilitate this outcome.”

The Applicant’s response

[14] The Applicant responded to the request for his response to the Applicant’s submissions as follows:

“I would like to repond on the matter of the representation of a lawer being present at the hearing on Monday 8th August. Unfortunately unlike a large organisation like Queensland Newapapers I am not in a financial state to have a lawer, as I have been out of work for many months and since my wife is only a low income worker this has not been possible. I have been seeking advice from legal aid who have helped and supported my submission.”

[15] Allowing for the Applicant to make submissions at the commencement of the substantive hearing does not provide a manageable way for the Respondent to proceed, on the basis that they may be potentially denied legal representation at the commencement of the hearing, which would not afford them appropriate procedural fairness. Accordingly, the matter of legal representation has been considered, on the basis of the submissions and the matters that the Commission must be satisfied of.

Consideration

[16] 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

[17] The Explanatory Memorandum to the Fair Work Bill’s introduction in 2008 relevantly reads as follows:

“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.”

[18] The application of s.596 of the Act allows the Commission to exercise discretion to grant permission for legal representation in 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

[19] In considering the grant of legal representation, the Commission is required to establish that the prescribed conditions exist prior to exercising the discretion to grant permission. Accordingly, if the prescribed conditions are considered to be in existence, the discretion to grant permission for a person to be represented by a lawyer or paid agent will be exercised in favour of the person. This assessment of the prescribed conditions is an objective exercise.

Consideration and Conclusion

[20] In this matter, the Respondent has not addressed the issue of fairness. The Applicant is self-represented and no submissions were provided as to whether the organisation, being a significant corporation, has available internal representatives. However, given the Employer Response was filed by the Senior Manager Employee Relations, as stated, it is reasonable to infer relevant personnel involved in the dismissal decision would provide representation.

[21] It is significant that the Respondent’s legal representatives have failed to address the issue of fairness between the parties. Whilst the Respondent has referred to the volume of materials that they have filed, it is for the Applicant to cross-examine these four Respondent witnesses, not the Respondent. The Applicant’s materials are relatively straightforward. The factual matrix as referred to, whilst containing contested issues, does not present as containing particularly complex issues. The Respondent has had the Applicant’s materials since June 2016. The Applicant received the last Respondent statement on 15 July 2016. There is no significant complexity on the face of the materials warranting legal representation.

[22] The Respondent indicated that one of the significant reasons for the granting of permission to appear is that the hearing is imminent, and it is only listed for one day.

[23] Accordingly, taking into account the specific facts and circumstances of this matter, and issues of fairness between the parties, against the provisions of s.596; I do not intend to exercise the discretion pursuant to s.596 to grant legal representation to the Respondent.

[24] I Order accordingly.

Progress of the matter

[25] However, it is acknowledged, given this Decision and the imminent listing of the hearing for only one day, this does not provide a manageable way for the parties to proceed.

[26] The submissions on behalf of the Respondent emphasising that the hearing date, set for Monday 8 August 2016, is imminent have been considered. In addition, the Respondent indicated that the proceedings would be under pressure given that, when the file was set down originally (prior to being allocated to the Commission as currently constituted), it was only listed for one day.

[27] Accordingly, in order to afford procedural fairness to the parties, the hearing listed for Monday 8 August 2016 will be de-listed. The matter is set down before an alternative member for Conciliation/Directions to allow for the further consideration of this matter and the proper progress of the proceeding.

[28] The matter will be listed on Friday 5 August 2016 for an in person conference for Conciliation/Directions before Deputy President Asbury.

[29] Matters associated with the listing for arbitration will also be raised with the parties. Accordingly, the Company personnel conducting the arbitration should be in attendance. A separate listing will be issued.

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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