Mr Ian McCarthy v Queensland Indigenous Family Violence Legal Service
[2023] FWC 164
•19 JANUARY 2023
| [2023] FWC 164 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Ian McCarthy
v
Queensland Indigenous Family Violence Legal Service
(U2022/11760)
| COMMISSIONER SPENCER | BRISBANE, 19 JANUARY 2023 |
Application for an unfair dismissal remedy – objection to legal representation - s.596
representation by lawyers and paid agents – representation granted.
This decision relates to an application, filed by Mr Ian McCarthy (the Applicant), pursuant to s.394 of the Fair Work Act 2009 (Cth) (the Act). The Respondent sought to be represented pursuant to s.596 of the Act. The Applicant raised an objection to the Respondent having legal representation in this matter. This decision only relates to the matter of permission to appear.
The Applicant is self-represented in these proceedings. Queensland Indigenous Family Violence Legal Service (the Respondent) has sought permission to be legally represented in the proceedings.
The Respondent applied for permission to be granted legal representation in correspondence to the Commission. Directions were set for the Respondent to provide s.596 submissions (prior to the Conference in this matter). The Applicant was also provided an opportunity to provide a reply prior to the Conference. Both parties filed in accordance with the Directions. The Respondent also provided submissions in support of their application for legal representation on the grounds of s,596(2). The Applicant objected to the legal representation in correspondence to the Commission and provided submissions in support of the objection. Following discussions on the facts of the matter, during the conference (held on 16 January 2023), parties were advised, that permission was granted, and reasons were set out. The Applicant, by email yesterday requested the reasons for the s.596 decision to be provided, prior to the decision proper. This decision deals with the permission to appear matter only.
LEGISLATION
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...”
SUMMARY OF THE RESPONDENT’S SUBMISSIONS
s.596(2)(a) Efficiency
The Respondent’s representative submitted, that the Respondent is a not-for-profit Aboriginal and Torres Strait Islander community-controlled organisation providing free legal services to Aboriginal and Torres Strait Islander peoples who are victim-survivors of domestic violence and/ or sexual assault in the practice area of domestic and family violence, child protection law, family law, victims assistance Queensland applications and sexual assault matters. The Respondent’s representative further asserted that QIFVLS does not provide any commercial litigation services, including employment law matters.
The Respondent sought permission under section 596(1) of the Fair Work Act 2009 (Cth) (FW Act) to be legally represented at all hearings and conferences relating to the Application, including the conference listed for 16 January 2023, by MJT Law.
The Respondent submitted that the assistance of a trained legal advocate and, in particular, an advocate familiar with the practice and procedures of the Fair Work Commission, will enable the Respondent to identify the key issues in dispute and confine its legal and evidentiary case accordingly.
Further it was argued, representation would allow for effective representation in circumstances where the Respondent employees have no advocacy experience. It was submitted that in National Tertiary Education Industry Union v The University of Notre Dame Australia, Commissioner Williams observed that:[1]
‘On the basis of the information before the Commission I conclude [the party seeking permission to be represented] is able to represent itself to a standard that would be satisfactory, sufficient or adequate however I agree with Senior Deputy President Richards that that is not the consideration under section 596(2) of the Act. Rather the question is whether [the party seeking permission to be represented] is unable to represent itself in a manner that allows it to create a striking impression, or to have an impressive or powerful effect.’
The Respondent submitted that it would be unfair not to allow the Respondent to be represented as the Respondent will otherwise not be able to represent itself effectively.
As put generally by Deputy President Sams:[2]
‘…the prospects of a case being run more efficiently and focused on the relevant issues to be determined is more likely where competent legal representation is involved.’
The Respondent argued that in circumstances where one or more of the provisions in s.596(2) are made out, the Commission would ordinarily grant permission to appeal.
SUMMARY OF THE APPLICANT’S SUBMISSIONS
The Applicant, in his submissions objecting to the Respondent’s legal representation, referred to the fact that Respondent organisation employs over 12 qualified solicitors licenced to practice in Queensland despite not providing any commercial litigation services including employment law matters. The Applicant also noted that the Respondent has an annual income in excess of 8 Million Dollars and employs approximately 50 staff including a Human Resources Manager and thus has the capacity to represent itself in this matter.
The Applicant further submitted that s.596(2)(a) of the Act only allows permission to be represented if it would enable the matter to be dealt with more efficiently but submitted that the matter is not complicated and does not involve any financial calculations or considerations, nor does it require complicated legal advice noting that the Applicant himself would be the only witness to submit a witness statement and thus required for cross-examination.
In his submissions, the Applicant referenced s.596(2)(c) of the Act, noting that the Applicant would not be represented and has no legal training and contended that it would not be unfair for the Respondent, not to be represented. The Applicant submitted that the Act provided a mechanism available to both Applicant and Respondent, where both parties are treated fairly, on equal footing and where parties can present their cases without fear or favour and where one party is not disadvantaged by not having representation.
CONCLUSION
The application of s.596 of the Act allows the Commission to exercise discretion to grant permission for legal representation in proceedings, however, 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]
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. The submissions of both parties on legal representation have been taken into account.
There is some complexity in the current matter, as the matter involves an assessment of the facts and evidence in relation to a series of allegations underpinning a dismissal for serious misconduct for a breach of confidentiality. The Applicant is arguing that there was a breach of his workplace right in that a complaint regarding matters with the CFO & Chairman were not dealt with prior to a show cause process was instituted with him. In addition, allegations of criminal conduct are referred to.
With respect to the issue of fairness between the parties, the Commission’s role is to provide a fair process and the Commission has control of the process and the conduct of these proceedings. This is a matter where Directions have been set for the s.394 matters to enable the filing of material pertaining to the issues central to the dismissal. All of these will be taken into account, however legal representation will assist the efficient and effective conduct of the matter to allow for the consideration of the matters relevant to the dismissal in an orderly manner, noting there is some complexity to the matter. The Parties cases are very different. The Respondent relies on a show cause process which the Applicant alleges was instituted in response to his complaint. Further he argues the complaint process was not followed prior to termination. It is recognised that the Applicant is self-represented, and this will be given appropriate consideration to ensure a fair process is afforded at the hearing. A consent process was put in place (arising from the Directions conference) to enable the Applicant to seek procedural guidance, in preparing for the hearing from my Associate.
As referred to, there is some complexity to the factual matrix to be assessed against the legal tests as to whether the alleged serious misconduct can be substantiated. Therefore, to assist in the efficient, fair and effective conduct of the matter, the Respondent, pursuant to s.596(2)(a) of the Act, is granted permission to be represented by a lawyer at the hearing for this matter. The Commission is responsible for providing a fair process to both parties, and the procedure will be controlled by the Commission, allowing for the equitable presentation of both cases.
Accordingly for the reasons set out, legal representation is granted pursuant to s.596(2)(a) to enable the efficient presentation of a complex matter.
I Order accordingly.
COMMISSIONER
[1] [2014] FWC 2409 at [32].
[2] Applicant v Respondent [2014] FWC 2860 at [20]; see also [2021] FWC 3178 at [34].
[3] Rodgers v Hunter Valley Earthmoving Company Pty Ltd [2009] FWA 572.
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