Mr/Nirmal Singh v Aerocare Flight Support Pty Ltd

[2016] FWC 3128

[2016] FWC 3128

FAIR WORK COMMISSION

DECISION

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

Mr/Nirmal Singh
v
Aerocare Flight Support Pty Ltd
(U2015/12518)

COMMISSIONER HUNT BRISBANE, 18 MAY 2016

Application for relief from unfair dismissal – representation by lawyers and paid agents.

[1] Mr Singh’s employment as an Airline Service Agent was terminated by Aerocare Flight Support Pty Ltd (Aerocare) after representatives of Aerocare discovered Mr Singh had made a number of posts on Facebook using a profile other than in his own name. The posts made by Mr Singh were considered by Aerocare to be supportive of the terror organisation known as ISIS. It is not disputed the posts were made by Mr Singh.

[2] The matter has been set down for hearing in Brisbane on 24 May 2016. Mr Singh will appear and give evidence via video-link from the Fair Work Commission courtroom in Perth. At least one witness for Aerocare will give evidence in Perth, and another witness for Aerocare will give evidence via video-link from the Fair Work Commission courtroom in Adelaide.

[3] Aerocare has made an application pursuant to s.596 of the Fair Work Act 2009 (the Act)for permission to be represented at the hearing by a lawyer. Mr Singh objects to Aerocare being granted leave to be represented by a lawyer.

[4] The parties were directed to file submissions addressing the issues for consideration by the Fair Work Commission (the Commission) in s.596 of the Act.

[5] 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.”

[6] With regard to s.596(2)(a), Aerocare submits the matter will be dealt with more efficiently by Aerocare having legal representation as the matter has some complexity. The matters to be determined involve broad allegations of infringement of personal privacy, the application of national security, anti-terrorism and air safety and anti-discrimination legislation. Additionally, some facts remain in dispute.

[7] With regard to s.596(2)(b), Aerocare submits that due to the level of complexity, it is beyond Aerocare’s usual experience in dealing with unfair dismissal matters.

[8] With regard to s.596(2)(c), Aerocare submits it will not be unfair to Mr Singh that Aerocare is represented as the matters raised by Aerocare will be no differently put to Mr Singh than the questions or matters that would otherwise be put to Mr Singh by the Commission in considering the application. Aerocare further submits that Mr Singh previously had representation and still has the opportunity to obtain representation, to which Aerocare would not object to leave being granted.

[9] Mr Singh submits as follows:

(a) He was a casual employee with Aerocare and currently works part-time. He was unemployed for approximately two months (October – November 2015) after being dismissed by Aerocare. He is unable to afford legal representation;
(b) Aerocare is incorrectly citing matters of national security, anti-terrorism and air safety to justify the termination of the employment. The issue is simply a decision of Aerocare terminating Mr Singh’s employment on defective grounds without following Aerocare’s own procedures when other options were available to Aerocare;
(c) Aerocare has an adequate number of suitably skilled legal and human resources personnel who can adequately represent Aerocare in these proceedings; and
(d) Aerocare’s managers can individually or collectively take a decision to termination Mr Sing’s employment, but claim they need legal representation to justify the dismissal.

Consideration

[10] The decision of Flick J in Warrell v Walton 1addresses 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)...”

Conclusion

[11] 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. 2

[12] I have concluded that permission for Aerocare to be represented by a lawyer will enable the matter to be dealt with more efficiently taking into account the complexity of the matter. This is because there are matters to be determined as to whether Mr Singh’s admitted activities in making public statements on Facebook which, on Aerocare’s submission, appear to be in support of a known terrorist organisation, and have relevance to his employment. Additionally, issues raised by Aerocare include those of national security, anti-terrorism, air safety and anti-discrimination legislation. These are not simple matters to determine.

[13] Mr Singh’s evidence provided to the Fair Work Commission in support of his claim is that any posts made by him under a pseudonym would not cause any person to come to the conclusion that he works for Aerocare or at the Perth airport. Mr Singh’s evidence is that in relation to one post, it was posted in sarcasm, and in relation to all posts, they were political in nature and could not be termed to be in breach of Aerocare’s social media policy.

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

[15] All necessary and appropriate assistance will be afforded by the Commission to Mr Singh at the hearing to ensure procedural fairness, and that there is no disadvantage by any lack of understanding of issues or hearing processes.

[16] For the reasons set out above, I exercise my discretion under s.596 (1) of the Act to grant permission for Aerocare to be represented by a lawyer.

COMMISSIONER

 1 [2013] FCA 291.

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

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