Mr Jaspreet Bedi v Serco Australia Pty Ltd
[2019] FWC 7303
•23 OCTOBER 2019
| [2019] FWC 7303 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
Section 394 - Application for unfair dismissal remedy
Mr Jaspreet Bedi
v
Serco Australia Pty Ltd
(U2019/8964)
DEPUTY PRESIDENT ANDERSON | ADELAIDE, 23 OCTOBER 2019 |
Application for an unfair dismissal remedy – representation – efficiency – complexity – fairness – permission granted
[1] On 14 August 2019 Mr Jaspreet Bedi (Mr Bedi or the Applicant) applied to the Fair Work Commission (the Commission) under section 394 of the Fair Work Act 2009 (the FW Act) for an unfair dismissal remedy in relation to his dismissal by Serco Australia Pty Ltd (Serco, the employer or the Respondent). He claims to have been unfairly dismissed on 31 July 2018.
[2] The application is 358 days out of time.
[3] Serco oppose the application. It raises jurisdictional issues.
[4] The Commission issued directions on 23 September 2019. The directions required a party seeking to be represented by a legal practitioner or paid agent to request permission in writing. Serco seeks permission under section 596 of the FW Act. 1 The request is opposed by Mr Bedi.2
[5] This decision determines that question.
The Facts
[6] The facts relevant to the issue of representation are generally not in dispute.
[7] The employer is a large business forming part of a multinational organisation providing, amongst other activities, immigration services to government clients.
[8] Mr Bedi was employed as a casual employee for two years and seven months before being removed from the casual pool of employees in July 2018.
[9] Serco has internal human resource and employee relations capability. Its response to the application was filed under the name of its National Employee Relations Manager.
[10] Serco contend that the first application was finally disposed of; having been made, settled and discontinued by what it says was a binding settlement agreement.
[11] This is the second unfair dismissal application made by Mr Bedi concerning his alleged dismissal. His first application (U2018/8128) was discontinued by Mr Bedi by notice dated 12 September 2018 following settlement discussions with the employer.
[12] Mr Bedi seeks an extension of time for the hearing and determination of his second application or, in the alternative, re-opening of his first application. He contends that Serco failed to honour the settlement agreement.
[13] Serco oppose both courses.
[14] Serco raise a further and alternate jurisdictional issue. It claims that Mr Bedi was an irregularly employed casual employee and, as such, not dismissed.
[15] Two of the preliminary issues (Mr Bedi’s application for an extension of time and his application for re-opening) are listed for hearing before me by telephone on 8 November 2019.
[16] Mr Bedi is currently self-represented.
The Legal Principles
[17] Section 596 of the FW Act provides as follows:
“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.”
[18] Granting of permission under section 596 involves a two-step process. The first is that at least one criteria in section 596(2) needs to be satisfied. The consideration required by this first step “involves the making of an evaluative judgment akin to the exercise of discretion”.3 The second is that the discretion must be exercised in favour of the applicant for permission4 in the sense that the discretion concerns whether to grant permission, not whether to deny or withdraw an established right.
The Submissions
[19] Serco submit that the employer’s legal representatives have familiarity with the matter given their involvement in the first application. They say that this familiarity will add to efficiency.
[20] Serco also submit that the preliminary and jurisdictional issues make this a complex proceeding involving facts not simply concerning Mr Bedi’s removal from the casual pool of employees but also the nature of the resolution of the first application. Serco contend that representation on complex matters of this nature is most efficiently achieved by legal representation.
[21] Mr Bedi submits that it would be unfair to permit Serco to be legally represented in circumstances where he is self-represented and in circumstances where he claims that the employer’s legal representatives are the same as the representatives on the first application. He says that the representatives cannot be trusted in light of his belief that the settlement agreement has not been honoured by the employer.
Consideration
[22] Serco can only be represented by a lawyer (or paid agent) at the hearing with permission of the Commission.5
[23] Whether to grant permission is a discretionary matter to be made having regard to the factors set out in section 596(2) of the FW Act: efficiency (in the context of the complexity of the matter); fairness (in the context of the capacity of the person seeking permission to effectively represent themselves); and fairness between the parties.
[24] The starting point for the exercise of the discretion is that granting permission should be seen as a departure from the default position that a party in proceedings before the Commission must normally appear on its own behalf. This proposition is consistent with the statutory scheme:
“FWA is intended to operate efficiently and informally and, where appropriate, in a non-adversarial manner. Persons dealing with FWA would generally represent themselves.”6
[25] I now turn to the considerations in section 596(2).
Section 596(2)(a) - Efficiency
[26] This proceeding has a number of unique features. It concerns an application for an extension of time and/or an application for re-opening of an earlier (and currently discontinued) unfair dismissal claim concerning the same alleged dismissal.
[27] If those threshold issues are determined in favour of Mr Bedi, the matter then concerns a further jurisdictional issue as to whether Mr Bedi was dismissed in light of his status as a casual employee.
[28] Determining each of these issues requires a factual matrix. Those facts concern not simply Mr Bedi’s removal from the casual pool of employees but also the nature of the resolution of the first application and his conduct and the conduct of the employer in the year since the apparent settlement agreement.
[29] Given the potential for certain of these facts to be in dispute, oral evidence may need to be taken at the hearing of this matter. That evidence may need to be tested.
[30] Representation by a legal practitioner is likely to add to the efficient taking of evidence and identification of those facts which are, and which are not, in dispute.
[31] The preliminary and jurisdictional issues arising create a material layer of complexity. They involve the application of facts to legal principles. Scope exists for debate on those principles and the extent to which they permit discretion to extend time or re-open discontinued proceedings.
[32] That the employer’s legal practitioner has historic familiarity with the matter is likely to add to efficiency in fact-finding and submissions.
[33] I am satisfied that sub-section 596(2)(a) is made out. Granting permission for Serco to be represented by a lawyer in these proceedings would enable the hearing to be conducted more efficiently, taking into account complexity.
Sections 596(2)(b) and (c) – Fairness
[34] The fact that sub-section (1) of section 596 is made out does not compel the exercise of discretion in favour of the person requesting permission.7 All factors in the section need to be considered, including fairness (although not all need to be made out). Sub-sections 596(2)(b) and (c) require fairness to be considered in two contexts: fairness in the context of the capacity of the person seeking permission to effectively represent themselves; and fairness between the parties.
[35] Serco has internal human resources and employee relations capacity. It is a large organisation likely to be able to effectively represent itself on events that occurred in the workplace concerning Mr Bedi but the legal issues arising from the preliminary and jurisdictional issues it has raised are not mere workplace or standard industrial issues.
[36] Sub-section 596(2)(b) is made out but to a moderate extent only with respect to hearings on the preliminary and jurisdictional matters.
[37] I now turn to sub-section 596(2)(c). This sub-section requires the Commission to take into account fairness between the person seeking permission (Serco) and other persons in the matter (Mr Bedi).
[38] This sub-section is not made out by Serco. It weighs in favour of Mr Bedi and against a grant of permission. Mr Bedi is self-represented. Although he has some familiarity with Commission proceedings (having participated in proceedings on his first application) a grant of permission would result in an inequality in representative capacity, including on the legal principles arising.
[39] It would not be unfair to refuse the employer’s request on that ground.
Conclusion
[40] The considerations of efficiency through effective representation having regard to complexity weigh in favour of a grant of permission under section 596 of the FW Act.
[41] The issues of fairness weigh somewhat against such a grant, as does the default statutory position.
[42] On balance, I am satisfied that permission should be granted given the nature of the preliminary and jurisdictional issues, and the contribution that legal representation is likely to make to the efficient conduct of proceedings on those matters.
[43] I hereby grant such permission to Serco to be represented by a legal practitioner in further proceedings on this matter.
[44] To the extent necessary, and consistent with my obligations as an independent office holder, I intend to provide a measure of assistance to Mr Bedi during the hearing of the matter to satisfy myself that he is in a position to lead and test evidence and address me on the legal issues raised by the employer
DEPUTY PRESIDENT
Printed by authority of the Commonwealth Government Printer
<PR713603>
1 Serco Submission 8 October 2019
2 Mr Bedi Submission 8 October 2019 (email)
3 Asciano Services Pty Ltd v Hadfield[2015] FWCFB 2618 at [19]
4 Calleri v Swinburne University of Technology[2017] FWCFB 4187 at [36]
5 Section 596(4) does not apply in this matter
6 Explanatory Memorandum to the Fair Work Bill 2008 at paragraph 2291
7 Warrell v Fair Work Australia [2013] FCA 291 at [24]
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