Mr Tahir Ozturk v Gold Coast Hospitality Services Pty Ltd

[2018] FWC 3210

[2018] FWC 3210

FAIR WORK COMMISSION

DECISION

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

Mr Tahir Ozturk
v
Gold Coast Hospitality Services Pty Ltd
(U2017/12246)

COMMISSIONER BOOTH BRISBANE, 7 JUNE 2018

Application for an unfair dismissal remedy – section 596 representation by lawyers and paid agents – permission granted.

[1] Mr Tahir Ozturk (the Applicant) has made an application under s.394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy in relation to his dismissal by Gold Coast Hospitality Services Pty Ltd (the Respondent).

[2] This decision deals with the question of whether the Fair Work Commission (the Commission) should grant permission for the Applicant to be represented by a lawyer.

[3] Both parties have filed written submissions, and the Respondent objects to the representation.

The Law

[4] Sections 596 provides guidance and as to when the Commission may grant permission for a person to be represented by a lawyer paid agent:

“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.”

[5] As noted by Justice Flick in Warrel v Fair Work Australia [2013] FCA 291:

“[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”.”

[6] Therefore, the granting of permission under s.596 involves two steps: first, I must be satisfied that at least one of the criteria under s.596(2) is met; and secondly I must choose to exercise my discretion under s.596(2) in favour of the Applicant for permission.

Background and Submissions

[7] The Applicant submits that his dismissal was the result of a $500 tip received from a client named Mr Hayden. He submits that he was suspended following a complaint regarding the $500 incident, and was asked to “[retire] gracefully” by the Respondent. The Applicant submits that he was dismissed on or after 26 October 2017.

[8] The Respondent rejects that the Applicant was dismissed or forced to resign, and says that the Applicant quit or retired voluntarily.

[9] The Applicant submits that legal representation should be granted for the following reasons:

•  A jurisdictional issue has been raised in this matter, hence there is a likelihood of “recourse to case law”;

•  The Applicant is unable to represent himself in a manner which “creates a ‘striking impression’ or which has an ‘impressive’ or ‘powerful effect’”;

•  The refusal of permission would be unfair, taking into account the fairness between the parties to the matter;

•  The Applicant is an unemployed, unskilled worker;

•  The Applicant is not represented by a union;

•  English is not the Applicant’s first language; and

•  The Applicant has little concept of the common law, and is faced with criminal allegations which form the basis of his termination. 1

[10] The Respondent opposes the Applicant’s continued legal representation on the grounds that it will:

“a. Not result in a fair hearing;

b. Not assist to over come any complexity;

c. Not provide any greater effectiveness;

d. Not provide fairness to the parties

e. Result in the parties incurring significant costs to deal with a simple factual matter.” 2

[11] Regarding a fair hearing, the Respondent cites the following from the Explanatory Memorandum to the Fair Work Bill 2008 (Cth):

“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…”

…

“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.”

[12] The Respondent submits that even where there is a jurisdictional issue which needs to be resolved, permission may still be refused or limited to specific parts of a hearing. 3 The Respondent considers the current matter to be a simple test of the facts that took place prior to the Applicant’s termination, and that there is no complexity as to warrant the granting of legal representation.

[13] The Respondent submits that the matter can be dealt with efficiently without the granting of legal representation, and that the granting of such representation would be contrary to the intent of the legislature that a hearing be an informal procedure that should not be “burdened by unnecessary formality”. 4

[14] The Respondent rejects the Applicant’s submissions that he is an unskilled worker with a lesser understanding of the English language. The Respondent submits that the Applicant has over 35 years’ experience in customer service roles on the Gold Coast and spoke, read and understood English to the satisfaction of the Respondent, including the understanding and application of relevant policies and procedures, and regulations and legislation relating to, for example, the service of alcohol, security permits and workplace health and safety.

[15] On the exercise of discretion under s.596, the Respondent submits that the Applicant’s solicitors have made statements, published in the Gold Coast Bulletin, to the effect that they will call a number of witnesses in this matter. The Respondent claims this strategy is likely to:

“a. cause greater complexity;

b. decrease efficiency;

c. draw the matter out unnecessarily;

d. cause unfairness to the unrepresented Respondent;

e. prevent a fair hearing.” 5

[16] The Respondent further submits that since lodging his claim, the Applicant has been attempting to embarrass or harass the Respondent, asserted pressure on the Respondent through news publications, has increased the likelihood of the Respondent to incur costs, and has sought to “confuse the complexity of the matter”.

[17] Among other things, it is also submitted by the Respondent that legal representation should not be granted as the Respondent is a sole director of a small business, does not employ specialist human resource officers or in-house legal counsel, has been self-represented in this matter to date, and seeks a fair and just, quick, informal and transparent hearing of the matter without unnecessary technicality.

Consideration

[18] I turn now to the criteria and the two step process required following Warrell v Fair Work Australia.

Complexity

[19] I am satisfied that the matter is legally complex for the following reasons.

[20] As highlighted by the Applicant, this is a matter where the Respondent has raised jurisdictional issues and involves allegations of criminal conduct as the basis for the termination. The Respondent has raised the issues of costs and attempts at harassment and pressure through news publications.

[21] In my view, these issues alone make the matter complex, and potentially more efficient if the Commission were assisted by professional legal representation of one or both parties.

Fairness

[22] The Applicant’s representative has raised that the Applicant is an “unemployed unskilled worker” whose first language is not English and who has little concept of the common law, taking into account the criminal allegations which form the basis of his termination.

[23] While the Respondent rejects these claims, I am persuaded that the Applicant cannot fairly represent himself given the complexity of the matter and the potential that he may struggle with the legal concepts involved, particularly around the issue of criminal allegations.

Conclusion

[24] I find that this matter is complex factually and legally, and in my view it will be dealt with more efficiently by giving permission for the Applicant to be legally represented. It would be unfair for the Applicant not to be represented given the jurisdictional issues raised, the suggestions of criminal conduct, and the additional issues of costs and harassment.

[25] I exercise my discretion to allow legal representation to the Applicant under s.596(2) of the Act.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

<PR607751>

 1   Applicants submissions dated 24 May 2018.

 2 Respondent’s submissions dated 1 June 2018 at [4].

 3   Ibid at [9]; Blair v Kim Bainbridge Legal Service Pty Ltd T/A Garden & Green [2011] FWA 2720 at [5]-[6].

 4   Respondent’s submissions dated 1 June 2018 at [11]; Warrell v Walton [2013] FCA 291 at [25].

 5   Respondent’s submissions dated 1 June 2018.