Mr Robert Shane Walters v Metal Maintenance Pty Ltd

[2019] FWC 1910

[2019] FWC 1910

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.789FC - Application for an order to stop bullying

Mr Robert Shane Walters
v
Metal Maintenance Pty Ltd; Mr Wayne Buckleton; Ms Debra Murphy; Mr Tony Eldridge
(AB2018/700)

COMMISSIONER HUNT BRISBANE, 22 MARCH 2019

Application for an FWC order to stop bullying.

[1] An application has been made by Mr Robert Walters seeking orders from the Fair Work Commission to stop bullying.

[2] Mr Walters alleges that Mr Wayne Buckleton, Ms Debra Murphy, and Mr Tony Eldridge (the three Named Persons) have bullied him in his employment at Metal Maintenance Pty Ltd (Employer).

[3] The Employer and the three Named Persons (the Respondents) have requested permission to be represented by a lawyer at a hearing before me on 25 and 26 March 2019. The application is opposed by Mr Walters.

[4] The parties filed written submissions. This decision is based on the parties’ written submissions.

[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.

(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.”

Respondents’ submissions

s.596(2)(a)

[6] Relevant to the consideration required in s.596(2)(a), the Respondents submitted that the numerous allegations made by Mr Walters against the three Named Persons, which they have denied, gives rise to a degree of factual complexity in the matter beyond the ordinary. Consideration will need to be given to whether some of the alleged behaviour was reasonable management action carried out in a reasonable manner, which adds a level of complexity that means representation would enable the matter to be dealt with more efficiently. 1

[7] It was submitted that there is significant factual discord between the parties.

[8] Further, it was submitted that Mr Walters has raised additional issues in his further response filed with the Commission which the Respondents have not, and will not have an opportunity to test or respond to, other than through oral evidence in chief and/or cross-examination of Mr Walters.

[9] It was submitted that the hearing may be conducted with greater efficiency if the Respondents did not have to be represented by persons who are also witnesses.

[10] The Commission has granted leave in similar circumstances where the number of witnesses and employees created a level of complexity such that if permission for legal representation was not granted, multiple cross-examinations of witnesses may occur, and that legal representation would allow the matter to be dealt with more efficiently. 2

s.596(2)(b)

[11] The Respondents rely on a decision of Commissioner Simpson in Wilcox v Holcim (Australia) Pty Ltd T/A Humes [2016] FWC 2359 at [12]:

‘[12] The Respondent also submits that it would be unfair not to allow it to be represented because it does not employ a suitable person to represent itself. The Applicant submitted Ms Louise Elks a Human Resources Manager, is more than capable of representing the Respondent given her previous experience. The Respondent submits firstly Ms Elks has no legal qualifications and does not have any relevant advocacy or tribunal experience, and secondly Ms Elks will be a witness for the Respondent. I am satisfied it is reasonable for the Respondent not to want Ms Elks to conduct the case as well as be a witness in the circumstances of this case.’

[12] It was submitted that the Respondents do not have access to any human resources staff, nor anyone with any industrial relations advocacy experience. The Respondents submit that they are unable to effectively represent themselves at the hearing of this matter that would create a striking impression, or which has an impressive effect or which is powerful in effect.

Mr Walter’s submissions

[13] Mr Walter submitted that it would be unfair to him if the Respondents were represented by a lawyer while he is not. He noted that he had been as efficient as humanly possible during the proceedings in order to assist in finalising the matter quickly and efficiently.

Consideration

[14] The decision of Flick J in Warrell v Walton³ 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)...’

[15] 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.⁴

[16] When considering if a lawyer or paid agent representing a party would enable the matter to be dealt with more efficiently, taking into account the complexity of the matter, in my view, it requires a weighing-up exercise. The question is, in this case, would the lawyer enable the matter to be dealt with more efficiently, taking into account the complexity of the matter more than say, one of the three Named Persons?

[17] Mr Buckleton is the Owner and Managing Director of the Employer. Ms Murphy is the Administration and WHS Manager, and the domestic partner of Mr Buckleton. Mr Eldridge is the Desal Supervisor.

[18] I do consider the matter to be a sufficiently complex issue, having regard to the relationships between the parties, and the examination-in-chief and cross-examination that will need to take place. I also accept that there is significant factual discord between the parties. Further, the issue of whether some of the alleged behaviour was reasonable management action carried out in a reasonable manner is, in my view, adds a level of complexity to the matter. I am satisfied that the criteria in s.596(2)(a) has been met.

[19] Relevant to s.596(2)(b), I do not accept the Respondent’s submission that they are unable to effectively represent themselves at the hearing of this matter in a manner that would create a striking impression, or which has an impressive effect or which is powerful in effect. I consider they would, given at least Mr Buckleton’s position and experience, be in at least the same position or greater than Mr Walters in impressing upon me the Respondents’ positions.

[20] 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.

[21] For the reasons set out above, I exercise my discretion under s.596(2)(a) of the Act to grant permission for the Employer and the three Named Persons to be represented by a lawyer. The Commission will, of course, afford to Mr Walters all necessary and appropriate assistance at the hearing to ensure procedural fairness to him. There will be no disadvantage to Mr Walters, and if at any time Mr Walters has questions relevant to issues or processes before the Commission, this will be accommodated.

COMMISSIONER

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 1   Aly v Commonwealth Bank of Australia; Michelle Gentile; Russel Hayman[2015] FWC 3604 at [16].

 2   Applicant [2014] FWC 7378 and H v Centre and Others[2014] FWC 6128.

3 [2013] FCA 291.

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