Mr Slobodan (Bob) Durmic v Department of Home Affairs
[2023] FWC 1502
•3 JULY 2023
| [2023] FWC 1502 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Slobodan (Bob) Durmic
v
Department of Home Affairs
(U2023/1205)
| DEPUTY PRESIDENT BINET | PERTH, 3 JULY 2023 |
Respondent's Application for Leave to be Represented under s 596 of the FW Act 2009 (Cth) – Leave granted.
Mr Slobodan (Bob) Durmic (Mr Durmic) has filed an application (Application) pursuant to section 394 of Fair Work Act 2009 (Cth) (FW Act) with the Fair Work Commission (FWC) alleging he was unfairly dismissed by the Department of Home Affairs (Department of Home Affairs).
Mr Durmic resigned from his employment in an email sent to his manager on 24 January 2023. He says that he was forced to do so due to a delay in the resolution of an investigation being conducted into allegations that he had engaged in misconduct.
The Department of Home Affairs filed a Form F3 - Employer response to an unfair dismissal application, raising a jurisdictional objection to the Application asserting that Mr Durmic resigned and was not dismissed (Jurisdictional Objection).
The Department of Home Affairs informed Chambers that it did not believe there was any utility in participating in conciliation prior to the determination of the Jurisdictional Direction. Directions for the filing of materials in advance of a hearing were therefore issued to the parties (Directions).
The Directions invited parties seeking to be represented by a lawyer or paid agent at the hearing to file submissions in writing addressing the provisions of section 596(2) of the FW Act. The Directions also provided that, if a party sought to object to a request for representation, a submission setting out their objections should be made in writing to Chambers.
The Department of Home Affairs filed written submissions seeking permission to be represented by a lawyer at the hearing. Mr Durmic filed written submissions opposing the Department of Home Affairs’ application for permission to be represented.
The parties were invited to inform Chambers if they wished to be heard orally in relation to the application for permission to be represented. The parties elected to file further written submissions and then have the application for permission to be represented determined ‘on the papers’.
In reaching my decision I have considered all the submissions made by the parties, even if not expressly referred to in these reasons for decision.
Consideration
Whilst the FWC is not bound by the rules of evidence and procedure, it is subject to the common law principles of procedural fairness.
Section 577 of the FW Act also provides that:
“577 Performance of functions etc. by the FWC
The FWC must perform its functions and exercise its powers in a manner that:(a) is fair and just; and(b) is quick, informal and avoids unnecessary technicalities; and(c) is open and transparent; and(d) promotes harmonious and cooperative workplace relations.”
As the Practice Note - Fair Hearings commencing 15 July 2016 points out:
“The provision of a fair hearing is at the very heart of the Commission’s obligations to the parties who appear before it. A fair hearing involves the opportunity for all parties to put their case and to have that case determined impartially and according to law. Members of the Commission are bound to act “judicially” in the sense that they are obliged to provide procedural fairness and to determine matters impartially.”
Deciding whether parties are to be represented is a key aspect of ensuring that the manner in which proceedings are conducted is fair and just. A decision to grant or refuse “permission” for a party to be represented pursuant to section 596 of the FW Act 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.[1]
The issue of representation in a matter before the FWC is dealt with in section 596 of the FW Act 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. ...”
It is apparent from the very terms of section 596 that a party must normally appear on his or her own behalf.[2]
Section 596(1) of the FW Act provides that a party may be represented in a matter before the FWC by a lawyer or paid agent, only with the permission of the FWC.
Section 596(2) provides that the FWC may only grant permission for a person to be represented by a lawyer or paid agent in a matter before the FWC if:
a.it would enable the matter to be deal 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.
One or all of the prescribed conditions outlined in section 596(2) of the FW Act, but no others, may give rise to the FWC’s power to exercise its discretion to grant permission to a person to be represented by a lawyer or a paid agent in any given case.
The decision to grant permission is not merely a procedural step but one which requires consideration in accordance with section 596 of the FW Act. The decision to grant permission is a two-step process. First, it must be determined if one of the requirements in section 596(2) have been met. Secondly, if the requirement has been met, it is a discretionary decision as to whether permission is granted. The satisfaction of any of the requirements set out in section 596(2)(a) to (c) therefore does not of itself dictate that the discretion is automatically to be exercised in favour of granting “permission”.[3]
The appearance of lawyers to represent the interests of parties to a hearing runs the risk that what was intended by the legislature to be an informal procedure will be burdened by unnecessary formality.[4] The legislative desire for informality and a predisposition to parties not being represented emerges, if not from the terms of section 596, from the terms of the Explanatory Memorandum to the Fair Work Bill 2008 (Cth) which states that:
“2291. FWA is intended to operate efficiently and informally and, where appropriate, in a non-adversarial manner. Persons dealing with FWA would generally represent themselves. Individuals and companies can be represented by an officer or employee, or a member, officer or employee or an organisation of which they are a member, or a bargaining representative. Similarly, an organisation can be represented by a member, officer or employee of the organisation. In both cases, a person from a relevant peak body can be a representative.
2292. However, in many cases, legal or other professional representation should not be necessary for matters before FWA. Accordingly, cl 596 provides that a person may be represented by a lawyer or paid agent only where FWA grants permission.
…2296. In granting permission, FWA would have regard to considerations of efficiency and fairness rather than merely the convenience and preference of the parties.”
In addition, the Explanatory Memorandum contains the following commentary in its regulatory analysis section:
“r.335. FWA will move away from formal, adversarial processes, with legal representation and intervening parties. There will also be a higher bar set for representation. Permission for representation will only be granted to parties (including the Minister) where it would enable the matter to be dealt with more efficiently or fairly...It is envisaged that in most cases legal representation will not be necessary.”
Section 596 of the FW Act represents a more stringent requirement for the granting of permission than existed under the predecessor provisions.[5]
Section 596(2)(a) - Efficiency and Complexity
The Department of Home Affairs submits that granting permission to be represented would enable the proceedings to be dealt with more efficiently, particularly, having regard to the complexity of the nature of the proceedings.
The Department’s employment arrangements are regulated by the Public Service Act 1999 (Cth) (PS Act) and the Public Service Regulations 1999 (Cth) (PS Regulations).
The Department of Home Affairs submits that complexity arises because determining the Jurisdictional Objection requires consideration of the intersection between the statutory framework under which the Department as a Commonwelath department operates and sections 385, 386 and 394 of the FW Act as well as the case law in relation to ”forced resignation” and cases pre-dating the FW Act in relation to constructive dismissal.
The Department say that existing case law with respect to “forced resignation” has not considered the issue of whether lawful and permissible actions by an employer under a relevant enabling statute, such as the PS Act and the PS Regulations, may give rise to a “forced resignation” within the meaning of section 386 of the FW Act.
Mr Durmic asserts that the matters to be determined are not complex. He points to the refusal of the Department of Home Affairs to participate in conciliation and the failure of the Department of Home Affairs to file its materials in accordance with the dates in the Directions as first issued as evidence that legal representation has not assisted the efficiency of proceedings to date and to assert that it will not assist efficiency moving forward.
Matters which are more complex due to a jurisdictional objection being raised may be more efficiently dealt with if leave is granted. As observed by Senior Deputy President Richards in CEPU v UGL Resources Pty Ltd:[6]
“[23] It appears to me that where the Respondent (in this case) seeks to agitate a
jurisdictional issue then it would follow that representation by a lawyer would be a
reasonable course. Jurisdictional issues by their nature are prospectively complex in
their own right, and/or else may require a degree of familiarity with court and tribunal jurisprudence or authorities.[24] In the situation currently before me, permission to appear for purposes of any
jurisdictional considerations appears to me to be justified. That is, by granting
permission for Mr Copeland to appear the efficiency with which the jurisdictionalissue is dealt with would be assisted.
[25] It also appears to me that permission to appear in the substantive considerations
should be granted to Mr Copeland for other reasons. Where jurisdiction is in
question, it is important in any subsequent considerations to give close regard to the
boundaries of the matters subject to the dispute and any proposed remedy. In such
circumstances, a lawyer familiar with jurisdictional argument would ensure thematter would be dealt with more efficiently than would otherwise be the case.”
I am satisfied that the Jurisdictional Objection raised in this Application in the circumstances in which it arises creates a degree of complexity. The determination of the Jurisdictional Objection requires consideration of the intersection between the PS Act and the PS Regulations and the FW Act, as well as the case law in relation to forced resignation and constructive dismissal.
The Department of Home Affairs submits that that legal representation would also enable the substantive dispute to be dealt with more efficiently having regard to the complexity of the nature of the Proceedings. The Department submits that complexity arises from:
a.The Department’s obligations as a Commonwealth agency.
b.The circumstances in which the employment came to an end.
c.The remedy sought in circumstances where the Department asserts that Mr Durmic was lawfully stood down without pay.
I accept the Department’s submission that given the above features of the Application that the Applicant can be dealt with more efficiently if permission for legal representation is granted.
As Sams DP observed in Applicant v Respondent [2014] FWC 2860:
“[18] … Invariably, I have found the skills and expertise of an experienced industrial legal practitioner will be more of a help than a hindrance, particularly bearing in mind a legal practitioner’s professional obligations to the Commission and the Courts. In this respect, I refer to the comments of Mason CJ in Giannarelli v Wraith (1988) 165 CLR543; [1988] HCA 52…”
The Department of Home Affairs did not refuse to participate in conciliation. Rather they advised Chambers that they saw little utility in doing so prior to the determination of the Jurisdictional Objection. While in my experience conciliation almost always has some utility the view that it might not is a view the Department might hold and a view they might reach without or without legal representation. There is no evidence to suggest that this view was reached as a consequence of legal advive from the Department’s external legal advisors.
The Department of Home Affairs sought an extension of time to file its materials in accordance with the Directions prior to the due date for those materials to be filed and provided grounds for doing so.
The grounds on which the extension was sought were to:
“Liaise with the Australian Commission for Law Enforcement Integrity (ACLEI) regarding the provision of certain information and documents in its Outline of Submissions and the materials that will accompany it. Due to staff shortages associated with the Easter break and other factors, ACLEI is unable to provide its views regarding this issue until 13 April 2023. We have only become aware of ACLEI’s timeframes in this regard this afternoon.”
The Department explained that it was necessary to liaise with the ACLEI to avoid prejudicing an ongoing ACLEI investigation into the conduct of Mr Durmic. I was satisfied that this was an appropriate ground for granting an extension. The request for an extension of time was granted. The materials were duly filed in accordance with the extension. The materials were detailed and clearly structured. Since that time the Department of Home Affairs legal representatives have prepared and filed a digital court book on behalf of the parties which will greatly assist the efficient conduct of the Hearing and the preparation of the decision.
I am satisfied that the Hearing is likely to be more focused on the relevant issues to be determined and more efficiently conducted if there is competent legal representation by practitioners experienced in the jurisdiction.
Section 596(2)(b) - Effective Representation
In relation to sub-section 596(2)(b) of the FW Act, the Department of Home Affairs submits it would be unfair to require it to represent itself because it is unable to represent itself effectively.
The Department submits that the determination of the Jurisdictional Objection requires the consideration of complex and novel legal issues and the Department does do not employ any industrial relations lawyers located in Perth who have the expertise to effectively act for the Department in these proceedings.
Given the role and functions of the Department of Home Affairs the Department says that the proceedings may expose the Department to public scrutiny and will require the management of confidential and sensitive information. The Department of Home Affairs submits that the granting of permission for it to be represented would allow it to best manage the administrative, operational and reputational risks that may be posed by the proceedings.
Mr Durmic points out that the Department of Home Affairs is a large federal government department. According to Mr Durmic the Department has a dedicated and well staffed human resources division as well as a legal division, including he says, a section dedicated to employment law issues.
The proceedings are listed in Perth in person to ensure that the proceedings can be conducted efficiently and effectively without disruption and in circumstances in which contested evidence can be most reliably resolved. I am satisfied that the granting of representation will enable to Department to be more effectively represented by practitioners with the time and specialist knowledge to best present its case in person.
Section 596(2)(c) - Fairness between the parties
In relation to sub-section 596(2)(c) of the FW Act, the Department of Home Affairs points to the complexity of the matters to be determined, its responsibilities as a model litigant and its lack of available appropriately skilled and experienced in house resources.
The Department notes that Mr Durmic has a legal background and has received a legal education in both Serbia and Australia. The Department says that it is also aware of Mr Durmic has previously worked as a Magistrate when he lived in Serbia indicating that Mr Durmic has an understanding of the requirements of legal advocacy and consequently could effectively represent himself.
The Department of Home Affairs also notes that as a Commonwealth Agency, it has detailed and specific model litigant obligations which require it to act honestly and fairly in handling claims and litigation brought against it.8 This includes an obligation on the Department of Home Affairs, and its legal representatives, to act honestly and fairly in its handling of these the proceedings. This ought to ensure that the involvement of legal representatives does not delay or complicate proceedings.
Mr Durmic submits that it would be unfair to allow the Department of Home Affairs to be represented in circumstances where he is not legally represented. Mr Durmic concedes that he completed a law degree in Australia and that his job roles since his graduation have required him to apply migration law. However, he says that he has no prior experience in employment law and no familiarity with proceedings in the FWC.
Mr Durmic holds both overseas and Australian legal qualifications. He has demonstrated competency in researching and applying legal principles of employment law in the materials which he has filed and a familiarity with the court processes in his interactions with Chambers.
It is not unusual in matters before the FWC for one party to be represented where another party is self-represented. The FWC is experienced in ensuring as far as is reasonable that a self-represented party is not disadvantaged and has every opportunity to put forward their case.
The written submissions and evidence of the parties has been filed in advance of the proceedings, providing Mr Durmic with a significant period of time to undertake further research in relation to the relevant legal principles, to prepare his cross examination and familiarise himself with FWC processes. He will be provided with an opportunity to make his closing submissions in writing once he has had access to the transcript of the proceedings.
I am satisfied that is fair for the Department of Home Affairs to be represented by a lawyer in this instance and that any unfairness to Mr Durmic which might potentially arise could be effectively mitigated.
Conclusion
The Department of Home Affairs submits that the FWC should exercise its discretion to allow a legal representative to represent the Department of Home Affairs at the Hearing, because:
a.it would be fair and just, including having regard to the nature of the Department of Home Affairs, being a Commonwealth Department and the matters which require determination; and
b.legal representation would assist the FWC to deal with the proceedings more efficiently, particularly when regard is had to the complexity of the legal issues.
Mr Durmic submits that the FWC should not exercise its discretion to allow the Department of Home Affairs to be represented, as that would be fair and just to allow the proceedings to occur in a manner which is quick, informal and avoids unnecessary technicalities.
Given the obligations of legal practitioners to the FWC and the manner in which they must conduct themselves when dealing with unrepresented parties inclines me to the view that the granting of leave in the particular circumstances of this case will result not only in more efficient proceedings but also provide a fairer opportunity for Mr Durmic to ventilate his claims.
Having considered the submissions of the parties and being satisfied that requirements in sub section 596(2)(a) of the FW Act have been met I consider it appropriate in all the circumstances to exercise my discretion to grant leave to the Department of Home Affairs to be represented by a lawyer because I am satisfied that it would enable the matter to be dealt with more efficiently, taking into account the complexity of the matter.
I note that I also believe that it is unlikely that the Department could represent itself effectively if leave to be represented was not granted and that it would therefore be unfair to refuse leave including when taking into account fairness as between the parties.
DEPUTY PRESIDENT
[1] Warrell v Walton (2013) 233 IR 335, 341 at [24].
[2] Ibid.
[3] Ibid.
[4] Ibid [25].
[5] Dr Nitya Karmakar v Australian Campus Network Pty Ltd[2013] FWC 2340 at [9].
[6] [2012] FWA 2966, [23] – [26].
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