Mr Rhys Dudek v Bowral Concrete Pumping Pty Ltd

[2020] FWC 2309

[2020] FWC 2309

FAIR WORK COMMISSION

DECISION

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

Mr Rhys Dudek
v
Bowral Concrete Pumping Pty Ltd
(U2019/13861)

COMMISSIONER RIORDAN SYDNEY, 5 MAY 2020

Application for an unfair dismissal remedy.

[1] This decision arises out of an application for a remedy for an alleged unfair dismissal, made pursuant to section 394 of the Fair Work Act 2009 (the Act). On 10 December 2019, Mr Rhys Dudek (the Applicant) filed with the Fair Work Commission (the Commission) an application (the Application) for a remedy in relation to the termination of his employment by Bowral Concrete Pumping Pty Ltd (the Respondent). The matter is scheduled to be arbitrated on 6 May 2020 (the Hearing).

[2] On 30 April 2020, Daniela Fazio Lawyers Pty Ltd filed a Form F53 on behalf of the Respondent. This decision concerns whether the Respondent is to be granted permission to be represented.

Procedural History

[3] Below I have outlined the Application’s procedural history:

•  On 12 December 2020, the Commission wrote to the Respondent providing him with a copy of the Applicant's Form F2. As per Rule 19 of the Fair Work Commission Rules 2013, the Respondent was advised that he had seven days to file a Form F3. The Respondent did not file a Form F3 until 1 May 2020.

•  On 14 January 2020, the Commission wrote to the Respondent seeking a Form F3. 

•  On 16 January 2020, the Respondent confirmed his email address with the Commission. 

•  On 12 February 2020, a conciliation took place, and the matter was not resolved. I note, the Respondent participated in the conciliation.

•  On 27 February 2020, the matter was allocated to me for arbitration. 

•  On 28 February 2020, my Chambers wrote to the Respondent seeking a Form F3 and sent the Respondent a Notice of Listing providing that the Commission would hold a preliminary Conference, via telephone, on 3 March 2020. 

•  On 3 March 2020, the Respondent failed to attend the Conference. 

•  On 6 March 2020, my Chambers wrote to the Respondent to ask him to explain his absence from the Conference, to file a Form F3 and to put him on notice that if he failed to file a Form F3 by 4 pm on 10 March 2020, the matter would proceed, and a decision may be issued in his absence.

•  On 12 March 2020, the matter was listed for Hearing, in person, on 7 May 2020, at Wollongong Court House. At this time the following directions (the Directions) were issued: 

1. The Applicant (Mr Rhys Dudek) is directed to file with the Fair Work Commission, and serve on the Respondent, an outline of submissions, witness statements and other documentary material the Applicant intends to rely on in support of their application in this matter by no later than 4.00pm on 2 April 2020.

2. The Respondent (Bowral Concrete Pumping Pty Ltd) is directed to file with the Fair Work Commission, and serve on the Applicant, an outline of submissions, witness statements and other documentary material the Respondent intends to rely on in opposition to the application in this matter by no later than 4.00pm on 23 April 2020.

3. The Applicant (Mr Rhys Dudek) is directed to file with the Fair Work Commission, and serve on the Respondent, any witness statements and other documentary material in reply to the Respondent's witness statements and documents by no later than 4.00pm on 30 April 2020.

•  On 12 March 2020, my Chambers put the parties on notice that if they failed to comply with the Directions, the Commission would determine the Application based on the materials before it.

•  On 17 March 2020, my Chambers notified the parties that the Hearing would be conducted via telephone on 6 May 2020. The Directions issued on 12 March 2020 remained unchanged.  

•  On 1 April 2020, via telephone, the Respondent indicated to my Chambers that he wished for a lawyer to act on his behalf. Further, the Respondent sent my Chambers a blank email with the following in the subject line;

“to whom it may my solicitor is Daniella fazio lawyers 9713 7482”

•  On 2 April 2020, my Chambers wrote to the Respondent notifying them that a lawyer must seek leave to appear before the Commission. My Chambers wrote to the Respondent in the following terms attaching a Form F53 to its email.

“RE: U2019/13861 - Dudek, Rhys Daniel v Bowral Concrete Pumping Pty Ltd

I refer to your below email.

Lawyers and paid agents must seek permission to appear before the Commission. I have attached a Form F53. If you wish to be represented, your representative must complete and file a Form F53 with Chambers.

Once the F53 has been filed, the Commissioner will determine whether to grant permission.

Kind regards,”

•  On 23 April 2020, the Respondent failed to comply with the Commission’s Directions.

•  On 27 April 2020, I provided the Respondent a further period, until 4 pm on 30 April 2020, to follow the Commission’s Directions.

•  On 29 April 2020, my Chambers contacted Daniela Fazio Lawyers Pty Ltd to determine whether they did, in fact, intend to seek permission to represent the Respondent. Daniela Fazio Lawyers Pty Ltd stated that they had not been instructed to act in the matter. Approximately thirty minutes later, Ms Daniela Naidenov called my Chambers and informed them that she had now been instructed to act on behalf of the Respondent. My Chambers informed Ms Naidenov that lawyers do not have an automatic right to appear at the Commission and that if she intended to seek leave to represent the Respondent, she needed to file a Form F53. Further my Chambers put Ms Naidenov on notice that the Respondent’s submissions needed to be filed by 4 pm on 30 April 2020.

•  On 30 April 2020, Ms Naidenov filed a Form F53 on behalf of the Respondent.

Submissions with Respect to Representation

[4] In the Respondent’s Outline of Submissions dated 1 May 2020, the Respondent supported its application to be represented. The Respondent stated;

“13. The Respondent has sought the permission of the Commission to be represented by a lawyer in the matter and at the hearing of the matter.

14. The Commission has power to give permission for a person to be represented by a lawyer in circumstances where such permission would enable the matter to be dealt with more efficiently and in circumstances where it would be unfair not to allow a person to be represented because the person is unable to represent himself effectively; s596(2)(a) &(b) of the Act.

15. The writer of these submissions was instructed to act for the Respondent after 5pm on Wednesday 29 April 2020. In less than 48 hours the writer of these submissions has:(a) taken instructions from the Respondent’s Director;(b) Prepared and arranged for the execution of the Respondent’s Form F3 dated 30 April 2020;(c) Prepared and arranged for the execution of the Respondent’s Form F4 dated 30 April 2020;(d) Prepared and arranged for the Respondent’s witness statement to be affirmed by its Director;(d) Prepared these submissions;

16. Regrettably, until the intervention of the writer on behalf of the Respondent, the Respondent’s Director was not able to comprehend the seriousness of the Application which he is required to meet, nor does the Respondent’s Director (with no disrespect towards the Respondent’s Director intended) have skills which would assist the Commission determine the real issues in dispute in these proceedings in a manner consistent with the principals set out in s381 of the Act. This is evident by the Associate to Commissioner Riordan’s email to the parties dated 30 April 2020 wherein a chronology of events was set out.

17. For the above reasons, it is the Respondents submission that the writer ought to be granted permission to appear on behalf of the Respondent at the hearing of these proceedings.

18. If permission was granted, the writer wishes the Commissioner to note that the writer has Prior commitments on Monday, 4 May 2020 and will not be attending at work so it would be desirable if the Commissioner’s Associate could inform the writer whether approval is granted for the writer to appear on behalf of the Respondent prior to 4pm, Friday 1 May 2020.” 1

[5] On 30 April 2020, my Chambers wrote to the Applicant seeking his views concerning the Respondent’s application to be represented. The Applicant responded as follows;

“This is responding to your email yesterday, my views about a lawyer representing the respondent, I think he has left it too late to get a lawyer, he has left it until the last week before the final phone conference. He has ignored the rules, as he has had numerous times he didn’t submit his evidence on time. Then I thought he had until the 27th to do this, he didn’t, then he got until the 30th, still couldn’t comply now he gets until may 1st. How many chances should he be allowed? I think it’s unfair, because he could’ve had everything sorted much earlier, he didn’t attend the last phone conference call? Is that fine? I just wonder how many chances does he get? I think it’s unfair he can get a lawyer to represent himself he obviously has more money than me, as I can’t afford a lawyer. He never paid me anything I was owed no annual leave, I just think I deserve what I worked for and what I’m entitled to, I don’t know why he wants a lawyer I think it makes no difference because I think he has no defence, what’s the difference between him speaking on the phone or his lawyer.

Obviously he doesn’t take this thing serious, and hasn’t since it started, now what he has realised how close it is and is scrambling to have everything ready, when he should’ve had it ready, if he cared he would’ve been prepared. Obviously has no regard for your rules or for anyone” 2

Statutory Provisions

[6] Section 596 of the Act governs whether a lawyer or paid agent is able to appear before the Commission.

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 employersthat 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.

[7] Section 596 (1) of the Act determines that a lawyer may only appear with the permission of the Commission. Section 596 (2) of the Act outlines when the Commission may grant permission for a party to be represented. Section 596 (2) of the Act provides three conditions, one of which must be met before the Commission is empowered to grant permission for a party to be represented.

Consideration

Section 596 (2)(a) - it would enable the matter to be dealt with more efficiently, taking into account the complexity of the matter.

[8] I have read the submissions of both the Applicant and the Respondent. The Respondent has raised the jurisdictional objection that the Applicant complied with the Small Business Fair Dismissal Code. Although this does increase the complexity of the matter to some degree, it is an issue that is routinely dealt with by the Commission. The discrepancies between the party’s submissions are largely that they claim the termination occurred in different factual circumstances.

[9] In a recent decision of the Commission in Luke McGrath v Sunnyfield Disability Services [2020] FWC 2120, Commissioner Cambridge stated, at [17];

“the Commission generally recognises and appreciates the assistance that a lawyer might provide, and which ordinarily would enable the matter to be dealt with more efficiently, the prospect of such assistance should be contemplated in cases where clear complexity can be identified.”

As was the case in the above-mentioned matter, this is not an instance in which an appropriate degree of complexity can be identified.

Section 596 (2)(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.

[10] The Respondent’s submissions states that;

“the Respondent’s Director was not able to comprehend the seriousness of the Application which he is required to meet, nor does the Respondent’s Director (with no disrespect towards the Respondent’s Director intended) have skills which would assist the Commission determine the real issues in dispute in these proceedings in a manner consistent with the principals set out in s381 of the Act.” 3

[11] The Respondent’s neglect of the Application does not establish that he is unable to represent himself. Rather, it shows his hesitation to engage with the Commission’s process. I am of the view that the Respondent would be better seeking the assistance of an accountant than a solicitor. As the Applicant is self-represented any difficulties that the Respondent has advocating for themselves, will be shared by the Applicant.

Section 596 (2)(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.

[12] Section 577(a) of the Act mandates that the Commission exercise its powers in a fair and just manner. In Warrell v Fair Work Australia [2013] FCA 291 Flick J, of the Federal Court of Australia, found that in some circumstances this objective is not met by allowing one party to be represented while the other party is not. 4

[13] The Respondent’s application to be represented has come at the 11^th hour. In the context of the Applicant’s limited financial resources, it is highly unlikely the Applicant is going to obtain legal assistance. The result of granting the Respondent permission to be represented would create an imbalance between the parties that could not be remedied in the short period of time before the Hearing.

Conclusion

[14] As I have outlined above, I am not persuaded that either sections 596(2)(a), (b) or (c) of the Act have been satisfied. As such permission for the Respondent to be represented at the Hearing has been denied.

[15] I so Order.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

<PR718772>

 1   Respondent’s Outline of Submissions dated 1 May 2020 [13] – [18]

 2   Applicant’s email dated 1 May 2020

 3   Respondent’s Outline of Submissions dated 1 May 2020 [16]

 4 [2013] FCA 291 at [27]