Mr Hitender Kumar v Consulate General of India, Sydney

[2016] FWC 654

[2016] FWC 654

FAIR WORK COMMISSION

DECISION

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

Mr Hitender Kumar
v
Consulate General of India, Sydney
(U2015/4483)

COMMISSIONER CAMBRIDGE SYDNEY, 1 FEBRUARY 2016

Termination of employment - representation by lawyers and paid agents.

[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 Hitender Kumar (the applicant). The respondent employer is the Consulate General of India, Sydney (the employer).

[2] This Decision is made in respect to the discrete question as to whether the Fair Work Commission (the Commission) should grant permission for the employer to be represented by lawyers or paid agents (the representation question).

[3] The application was filed on 30 March 2015, and the applicant is represented by the Transport Workers’ Union of Australia (the TWU). The employer filed a response dated 21 August 2015 and at the same time Kaden Boriss lawyers filed a notice of representative commencing to act on behalf of the employer.

[4] The file indicates that conciliation of the matter occurred on 7 October 2015. The matter has been scheduled for Hearing/Conference on 8 February 2016.

[5] The employer provided written submissions dated 7 January 2016 in support of permission being granted for it to be represented by lawyers or paid agents.

[6] The TWU on behalf of the applicant has formerly raised objection to the employer being represented by lawyers or paid agents. The TWU has provided written submissions dated 29 January 2016, which set out the basis for the applicant’s opposition to the employer being granted permission to be represented by lawyers or paid agents.

[7] I have examined and considered the filed documentary material including the respective submissions of the Parties on the representation question as the basis for this Decision.

Consideration

[8] The question of representation in proceedings before the Commission is governed by section 596 of the Act which is in the following terms:

“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.

(3) The FWC’s permission is not required for a person to be represented by a lawyer or paid agent in making a written submission under Part 2-3 or 2-6 (which deal with modern awards and minimum wages).

(4) For the purposes of this section, a person is taken not to be represented by a lawyer or paid agent if the lawyer or paid agent:

(a) is an employee or officer of the person; or

(b) is an employee or officer of:

(i) an organisation; or

(ii) an association of employers that is not registered under the Registered Organisations Act; or

(iii) a peak council; or

(iv) a bargaining representative;

that is representing the person; or

(c) is a bargaining representative.”

[9] The legislative intentions underpinning s.596 of the Act have been the subject of various Decisions of the Commission and Fair Work Australia. Further, the approach to consideration of the representation question has been examined by way of Judicial Review in the (incorrectly named) Judgment of Warrell v Walton 1 (Warrell) and it is relevant to note, in particular, paragraph 25 of that Judgment.

[10] Upon examination of subsection 596 (2) of the Act, there appears to be three factors which separately or in combination, provide basis upon which the Commission can grant permission for a lawyer or paid agent to represent a party in proceedings such as the Hearing/Conference of a claim for unfair dismissal. The three factors which can be identified in paragraphs (a), (b) and (c) of subsection 596 (2), can be paraphrased as: (a) complexity/efficiency; (b) inability/effectively; and (c) fairness.

[11] In this case, the employer has submitted that those factors found in subsections 596 (2) (b) and (c) of the Act, respectively involving, inability/effectively, and fairness, have operated to provide basis for the Commission to grant permission for the employer to be represented by lawyers. Conversely, the TWU on behalf of the applicant submitted that all of the factors contained in subsection 596 (2) of the Act operated to establish that the Commission should refuse permission for the employer to be represented by lawyers.

Complexity/Efficiency - Subsection 596 (2) (a)

[12] The employer did not advance argument that the matter involved sufficient complexity such that its determination would be assisted by legal representatives.

[13] Upon examination of the evidence which has been filed and a consideration of any contests that may arise from it, I am unable to recognise a level of complexity beyond that which would ordinarily be found in a routine unfair dismissal matter.

Inability/Effectively - Subsection 596 (2) (b)

[14] The employer advanced an argument that it would be unfair if it was unable to represent itself without a lawyer. The inability to effectively represent itself was said to arise from the particular circumstances of the employer being a foreign Consulate. Specifically, the employer was said to be broadly unfamiliar with the operation of the domestic laws of Australia and it had only about 14 local staff, none of whom included any dedicated human resource personnel.

[15] The TWU on behalf of the applicant rejected that the employer was unable to represent itself effectively. The TWU submitted that the employer was backed by immense resources of the Indian Ministry of External Affairs which employed people with post-graduate qualifications who have had the benefit of legal advice and were capable of representing the employer effectively.

[16] Upon examination of the respective submissions, I am persuaded to the view that the particular circumstances of the employer, significantly, its unfamiliarity with Australian employment law, its fairly small size in terms of its Australian operation, and the absence of specialist staff in a human resources department, would make it unable to provide a “striking impression” or be “impressive” or be “powerful in effect.”

Fairness - Subsection 596 (2) (c)

[17] The issue of fairness between the Parties is a matter of recognised significance. In this instance both Parties have made submissions which have addressed the question of fairness.

[18] The employer submitted that unfairness would arise if it were denied an opportunity to be represented by lawyers, in circumstances where the TWU advocate was legally trained and experienced in Commission proceedings. The employer asserted that an imbalance would arise with the applicant represented by an experienced and legally trained TWU advocate and the employer required to utilise someone without such skills and experience.

[19] The TWU submitted that no unfairness would arise if the employer was not legally represented and the applicant was represented by staff of a registered organisation albeit apparently legally trained but not an Australian legal practitioner. The TWU submitted that the objects of the Act and a general requirement for informality of proceedings before the Commission were factors which operated against granting permission for the employer to be legally represented.

[20] In this instance, if permission for legal representation for the employer was not granted there would appear to be an imbalance created because the applicant would be represented by a legally trained and experienced TWU advocate while the employer would be required to utilise someone who was unfamiliar with Australian employment law. Further, given the size of the Australian operation of the employer, there would appear to be an obvious imbalance created if the employer was required to utilise its own staff.

[21] In the present circumstances, which involve the particular circumstances of the employer, and notwithstanding the reasoning contained in the Judgment in the Warrell case, I consider that there would be manifest unfairness between the respective Parties if permission was not provided for the employer to be represented by lawyers or paid agents.

[22] In view of the conclusions that I have reached in respect of each of the relevant aspects of subsection 596 (2) of the Act, the permission sought by the employer to be represented by lawyers or paid agents is granted.

COMMISSIONER

 1 Warrell v Walton [2013] FCA 291.

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