Mr Michael Franz v DXC Technology Australia Pty Limited T/A DXC Technology

[2018] FWC 1124

[2018] FWC 1124

FAIR WORK COMMISSION

DECISION

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

Mr Michael Franz
v
DXC Technology Australia Pty Limited T/A DXC Technology
(U2017/12533)

COMMISSIONER HUNT BRISBANE, 21 FEBRUARY 2018

Application for an unfair dismissal remedy – legal representation

[1] This matter concerns an application made by DXC Technology Australia Pty Limited T/A DXC Technology (DXC Technology) for permission to be represented by a lawyer at an unfair dismissal jurisdictional hearing in Brisbane on 23 February 2018.

[2] DXC Technology’s application is made pursuant to s.596 of the Fair Work Act 2009 (the Act). Mr Franz opposes the application.

[3] The parties were directed to file submissions as to whether leave for legal representation should be granted by the Fair Work Commission (the Commission).

[4] Section 596 of the 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.”

DXC Technology submissions

s.596(2)(a)

[5] Relevant to the consideration required in s.596(2)(a), DXC Technology submitted that because Mr Franz claims he was dismissed for various reasons including for personal illness and sick leave, harassment, DXC Technology withholding certain work and that Mr Franz’s subjective views relevant to the reasons for his dismissal will require extensive cross-examination.

[6] DXC Technology notes that in order for the Commission to determine the jurisdictional objection, that the dismissal occurred due to genuine redundancy, consideration will need to be given to s.389 of the Act, including:

(a) Whether Mr Franz’s former position is no longer required to be performed by anyone;

(b) Whether the consultation provisions of the Professional Employees Award 2010 were complied with; and

(c) Whether it would have been reasonable in all the circumstances for Mr Franz to be redeployed.

[7] It is DXC Technology’s submissions that it has been recognised that cases involving jurisdictional issues are complex and familiarity with the Commission would allow the matter to be run more efficiently. 1

s.596(2)(b)

[8] DXC Technology did not seek to make submissions relevant to s.596(2)(b), however after hearing from Mr Franz relevant to the capacity of DXC Technology to represent itself, the Commission directed DXC Technology to make submissions.

[9] DXC Technology informed the Commission it has a small in-house legal team. There are three lawyers in Sydney, one in Canberra, and a commercial disputes manager.

[10] One lawyer is an employment lawyer working four days per week. The role is focused on employee integration, acquisition matters and consequential employee transfer and other employee related matters. This lawyer does not have recent advocacy experience conducting jurisdictional hearings in the Commission.

[11] The other lawyers include the Director of Legal who oversees all legal matters, a commercial transactional lawyer in Canberra primarily focussed on work for government, and an IP commercial and corporate lawyer. None of these lawyers has been involved in the preparation of the matter for hearing.

[12] DXC Technology has an HR and Employee Relations team. Mr Ian Watts, HR Manager will be appearing as a witness in the matter. Mr Watts is the only HR Manager and has no advocacy experience. Mr Rick Stambulic, Employee Relations Manager is based in Melbourne. He does not anticipate attending the hearing, and DXC Technology states that he does not have relevant advocacy experience.

s.596(2)(c)

[13] In recent weeks Mr Franz has sought to have the Commission order two DXC Technology employees to attend the hearing and give evidence. The Commission declined the request to order the employees to attend and give evidence, on the basis that the Commission must only consider s.389 of the Act in the jurisdictional hearing, and not merit based arguments.

[14] It is DXC Technology’s submission that Mr Franz has demonstrated that he is more than able to represent himself, and accordingly, it would not create any imbalance if DXC Technology was represented. It is submitted that in the circumstances it would be unfair for DXC Technology not to be represented.

Mr Franz’s submissions

[15] Mr Franz submitted that he did not wish for there to be any delay to the hearing, and his priority is to have the application determined.

[16] It is submitted that DXC Technology have made the matter complex, told untruths, and representation of DXC Technology by somebody as capable as Mr Franz is, would make DXC Technology representing itself ‘problematic’. Mr Franz submitted, “DXC clearly need specialist professional help to address the glaring shortcomings of their own evidence.”

[17] Mr Franz contended that if DXC Technology is seeking representation, it is to address the deficiencies in its own evidence, not aid in the efficiency of the proceedings.

[18] It was suggested by Mr Franz that if the Commission granted leave for DXC Technology to be represented, ground rules should be made at the hearing to prevent involvement that goes beyond demonstrating efficiency in the running of the matter.

[19] Mr Franz submitted that it is not more efficient for DXC Technology to have a lawyer to cross-examine him, or for him to cross-examine a lawyer, and stated that is related to advantage, not to efficiency. It was contended that if permission is granted, Mr Franz should be ‘freely able during proceedings to verbally deny DXC the use of a lawyer in a situation I feel is advantageous.’

[20] As to competency, Mr Franz submitted that legal representation should be reserved for people who have a lack of education and poor English skills, and DXC Technology staff do not fall into this category.

Consideration

[21] The decision of Flick J in Warrell v Walton² addresses the obligation to strike a balance between the objective of an informal determination process with equity and efficiency considerations depending on the circumstances of a particular matter:

‘[24] 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”.

[25] 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 (Cth)...’

[22] The decision to allow a party to be represented in a matter is discretionary; it 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

[23] I am satisfied that while DXC Technology is a relatively large employer, the matters to be determined in this jurisdictional objection are sufficiently complex to warrant the granting of permission for legal representation. I am satisfied the assistance of DXC Technology’s legal representative will allow the hearing to be conducted more efficiently given the complex issues to be determined.

[24] Part of my consideration on this issue is because Mr Franz has demonstrated a concerted interest in putting to the Commission matters outside of the consideration required pursuant to s.389 of the Act. It will be necessary during the hearing to ensure Mr Franz focuses his attention intently on the considerations in s.389 of the Act, and not seek to draw the Commission into other considerations, namely the substantive issue including alleged harassment during his employment.

[25] The assistance of DXC Technology’s legal representative will aid the Commission in this function. The Commission will, of course, afford to Mr Franz all necessary and appropriate assistance at the hearing to ensure procedural fairness to him. There will be no disadvantage to Mr Franz, and if at any time Mr Franz has questions relevant to issues or processes before the Commission, this will be accommodated. This will not, however, extend to Mr Franz determining during the proceedings when he considers DXC Technology’s legal representative may or may not speak. At no time will Mr Franz cross-examine the legal representative.

[26] Further, the parties will be invited at the commencement of the hearing to address the Commission relevant to whether the hearing should be conducted as a determinative conference. Mr Franz may consider this to be a less adversarial process. The views of the parties will be considered on this issue.

[27] It is only necessary that one of the criteria in s.596(2) be met. I have determined that s.596(2(a) has been met.

[28] For the reasons set out above, I exercise my discretion under s.596(2)(a) of the Act to grant permission for DXC Technology to be represented by a lawyer.

COMMISSIONER

<PR600608>

 1   Communication, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v UGL Resources Pty Ltd [2012] FWA 2966 at [23]-[24].

2 [2013] FCA 291.

3 Rodgers v Hunter Valley Earthmoving Company Pty Ltd [2009] FWA 572.

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