Mr Steve Slemint v Australian Leisure and Hospitality Group Pty Limited T/A Chardons Hotel

[2018] FWC 5928

[2018] FWC 5928

FAIR WORK COMMISSION

DECISION

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

Mr Steve Slemint
v
Australian Leisure and Hospitality Group Pty Limited T/A Chardons Hotel
(U2018/6087)

COMMISSIONER HUNT BRISBANE, 25 SEPTEMBER 2018

Application for an unfair dismissal remedy – legal representation

[1] This matter concerns an application made by Australian Leisure and Hospitality Group Pty Limited T/A Chardons Hotel (ALH) for permission to be represented by a lawyer at an unfair dismissal jurisdictional hearing.

[2] ALH’s application is made pursuant to s.596 of the Fair Work Act 2009 (the Act). Mr Slemint is the applicant in the substantial proceedings and opposes the application made by ALH for permission for representation.

[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.”

ALH submissions

s.596(2)(a)

[5] Relevant to the consideration required in s.596(2)(a), ALH submitted that the Commission, as currently constituted had granted leave in similar circumstances in Michael Franz v DXC Technology Australia Pty Limited T/A DXC Technology)(DXC). 1 It was submitted that in DXC, the respondent was a relatively large employer and the matters to be determined in the jurisdictional objection were sufficiently complex to warrant the granting of permission for legal representation.

[6] It was submitted that the case presently before the Commission has many parallel features to the matter in DXC. Both employers are large employers, and the question of whether Mr Slemint is an employee or an independent contractor is a complex question and one that has significant implications.

[7] It was contended that there are some distracting matters, including whether, if Mr Slemint is an independent contractor, he is entitled to superannuation payments in accordance with the Superannuation Guarantee (Administration) Act 1992.

[8] It is ALH’s submission 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.²

[9] ALH did not make submissions relevant to s.596(2)(b) or (c), but did include in its submissions a passage of the decision of Senior Deputy President Richards in CEPU v UGL Resources Pty Ltd:

‘In the context used in the s.659(2)(b) of the Act, the adverb “effectively” is used to condition the verb “to represent”. Thus, a person must be unable to represent himself, herself or itself effectively in order for the requisite permission to be granted. It seems sufficiently clear that the Parliament did not intend that permission to be represented be granted when a person is unable to be represented “satisfactorily”, “sufficiently” or “adequately” etc. These are not the adverbs that Parliament has put to work in s.596(2)(b) of the Act. Rather, the adverb performing the conditioning work upon the verb “to represent” in s.596(2)(b) of the Act is “effectively”.

s.596(2)(b)

[10] Having regard to Mr Slemint’s objection to ALH being represented, and ALH citing my earlier decision in DXC, the following correspondence was sent from my chambers for ALH’s attention:

‘It is clear that the Commissioner, in coming to the decision in that matter, was interested in learning of the Respondent’s in-house capacity to effectively participate in a hearing. Please provide written submissions relevant to the in-house capacity of the Respondent to effectively represent itself at the hearing of this matter. The Respondent may consider it necessary to provide witness statements of such individuals attesting to their experience before the Fair Work Commission or like tribunals.’

[11] On 17 September 2018 a statutory declaration of Mr Ezra Pyers, ALH was filed. Mr Pyers attests to being employed as the Human Resources Business Partner of ALH, primarily responsible for providing human resources advice and support to ALH venues and management in Queensland and New South Wales.

[12] The Human Resources team consists of six individuals; a National Human Resources Manager, two Human Resources Coordinators, a part-time Human Resources Administrator, A Learning and Development Consultant, and Mr Pyers.

[13] Mr Pyers attests to the Human Resources team as being ‘lean’. In the role held by Mr Pyers, he is responsible for providing human resources advice for around 5,300 people. He considers that the ‘lean model’ provides little capacity for hiring in-house specialists, except for the Learning and Development role. He stated, “Similarly, it provides little opportunity to dedicate the time and resources required to address employment relations matters to a suitable standard.” I assume here that he means litigated employment relations matters.

[14] ALH has, on each occasion it has requested, been granted leave for legal representation. Accordingly, Mr Pyers does not have experience in representing ALH in claims of unfair dismissal. Mr Pyers considers that given the restrictions on his time and resources, if leave was not granted he would not be able to provide a suitable case as to why the matter should be dismissed on jurisdictional grounds.

s.596(2)(c)

[15] Mr Pyers attests that communication had been received from a law firm purportedly representing Mr Slemint, and Mr Slemint can no longer say that he is without legal representation.

Mr Slemint’s submissions

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

[17] It is submitted that ALH has already had the benefit of legal representation to prepare submissions and statements. Mr Slemint questions how much benefit ALH requires to have legal representation on the day of the hearing. He considers that the added efficiency afforded by legal representation has already been achieved.

[18] Mr Slemint had regard to s.596(2)(c) of the Act, and considered that the inverse should be considered; it would be unfair to allow ALH to be represented when he, himself cannot afford representation.

[19] As to the assertion that Mr Slemint is represented by a lawyer, Mr Slemint communicated that he has obtained the benefit of free legal representation to make offers in respect of a settlement of the matter. The representation does not extend beyond that. Communication from the relevant law firm to chambers confirms that position. I accept that Mr Slemint is not represented by a lawyer for the purposes of the determination of this issue.

Consideration

[20] 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)...’

[21] 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

[22] In the course of various proceedings before me where he has been instructing a representative, and having met Mr Pyers at industrial relations functions, I am of the view that he possesses a sound knowledge of workplace relations matters. My view is that he would not be out of place, or out of his depth as an advocate in conciliated or arbitrated matters before the Commission, even if it was for his first time. This is particularly so when the applicant is not represented.

[23] I indicate that I give little weight to the assertion that because the Human Resources Business Partner is responsible for 5,300 employees, he would have restrictions on his time and resources to attend to a hearing before the Commission of less than one day. If leave was not granted to ALH, a decision would need to be made as to who best to represent ALH in-house, regardless of other pressing business issues.

[24] 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, Mr Pyers? Accordingly, could Mr Pyers represent ALH as equally efficiently as the proposed lawyer in this matter involving the determination of whether Mr Slemint was a contractor or employee?

[25] That question can only be answered having weighed up the complexity of the matter. There are a large number of considerations to make in the balancing exercise of determining an employment relationship or a contractual relationship. I do consider it to be a sufficiently complex issue. Not one that is beyond Mr Pyers’ knowledge, but one where I determine, in this particular case, that granting leave to the proposed legal representative will enable the matter to be dealt with more efficiently.

[26] I am satisfied that the criteria in s.596(2)(a) has been met, after evaluating the complexity of the matter and weighing up who could more efficiently deal with the evidence, cross-examination and submissions before the Commission.

[27] Relevant to s.596(2)(b), if it were necessary to determine the issue, I would have some difficulty in finding that ALH, represented by Mr Pyers, would be unable to represent itself effectively. It might be that submissions would be put suggesting that without legal representation ALH might only be able to represent itself “satisfactorily”, “sufficiently” or “adequately” as addressed in [9] above. Each matter would turn on the facts before the Commission at the time. I foreshadow, however, that for future applications for the granting of leave before me by ALH, a very large employer, the mere suggestion that because Mr Pyers (or any other employee) has not ever appeared before the Commission, does not necessarily equate to an acceptance that ALH is unable to represent itself effectively.

[28] It is unnecessary at this time to consider s.596(2)(c), other than to say that Mr Slemint’s submissions at [18] are not accepted. The inverse consideration is not to be given.

[29] 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.

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

[31] 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, or a hearing. Mr Slemint may consider this to be a less adversarial process. The views of the parties will be considered on this issue.

COMMISSIONER

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 1   [2018] FWC 1124.

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

3 [2013] FCA 291.

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