Mr Timothy Redden v Harbour City Ferries Pty Ltd

[2014] FWC 6210

[2014] FWC 6210

FAIR WORK COMMISSION

DECISION

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

Mr Timothy Redden
v
Harbour City Ferries Pty Ltd
(U2014/1288)

COMMISSIONER CAMBRIDGE SYDNEY, 9 SEPTEMBER 2014

Termination of employment - representation by lawyers and paid agents.

[1] This Decision involves an application for unfair dismissal remedy made pursuant to s.394 of the Fair Work Act 2009 (the Act). The application was made by Timothy Redden (the applicant). The respondent employer is Harbour City Ferries Pty Ltd (the employer).

[2] This Decision is made in respect to the discrete question as to whether the Fair Work Commission (the Commission) should grant permission for the employer to be represented by lawyers or paid agents (the representation question).

[3] The application was filed on 16 April 2014, and the applicant is represented by the "Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU) (the AMWU). The employer filed a response dated 16 May 2014. The matter was the subject of unsuccessful conciliation held on 2 June 2014.

[4] On 10 June 2014, Corrs Chambers Westgarth, lawyers, filed a Notice of representative commencing to act on behalf of the employer. On 15 August 2014, the AMWU on behalf of the applicant, formerly raised objection to the employer being represented by a lawyer.

[5] Subsequently, the Parties have filed documentary material in accordance with an agreed timetable and upon which the Commission has been required to determine the representation question. The provision of documentary material on the representation question culminated with the AMWU filing and serving material on 3 September 2014.

[6] I have carefully examined and considered the filed documentary material including the respective submissions of the Parties as the basis for this Decision.

Consideration

[7] The question of representation in proceedings before the Commission is governed by section 596 of the Act which is in the following terms:

“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.”

[8] The legislative intention underpinning s.596 of the Act has been the subject of various Decisions of the Commission and Fair Work Australia. Further, the approach to consideration of the representation question has been examined by way of Judicial Review in the (incorrectly named) Judgment of Warrell v Walton 1 (Warrell) and it is relevant to note, in particular, paragraph 25 of that Judgment.

[9] Upon examination of subsection 596 (2) of the Act, there appears to be three factors which separately or in combination, provide basis upon which the Commission can grant permission for a lawyer or paid agent to represent a party in proceedings such as the Hearing of a claim for unfair dismissal. The three factors which can be identified in paragraphs (a), (b) and (c) of subsection 596 (2), can be paraphrased as: (a) complexity/efficiency; (b) inability/effectively; and (c) fairness.

[10] In this case both the employer and the AMWU have submitted that all of the factors involving complexity/efficiency, inability/effectively, and fairness contained in subsection 596(2) of the Act operated to provide basis to respectively grant or refuse permission for the employer to be represented by lawyers.

Complexity/Efficiency - Subsection 596 (2) (a)

[11] The employer submitted that the matter involved sufficient complexity such that its determination would be assisted by legal representatives. The complexity was asserted to arise from the nature of the circumstances surrounding the dismissal of the applicant and various other factors.

[12] In particular, the employer submitted that complexity arose because there were related dispute proceedings which were linked to the circumstances surrounding the dismissal of the applicant. The related dispute matter (C2014/649), had been arranged to be heard in conjunction with the unfair dismissal hearing of this matter. The employer submitted that the Commission would be assisted and the proceedings would be more efficient, if lawyers were involved with both matters. The employer submitted that there was complexity arising in both matters and jurisdictional objections had been raised by the employer in respect of the dispute matter. The employer submitted that permission should be granted for the employer to be legally represented in both the unfair dismissal matter and the dispute matter.

[13] Alternatively, the AMWU on behalf of the applicant rejected the complexity attributed to both matters by those representing the employer. The AMWU submitted that the claim for unfair dismissal which was based upon alleged misconduct, was a matter routinely dealt with by the Commission. The AMWU submitted that the question of legal representation should be dealt with separately for each of the matters. The AMWU acknowledged the connection between the two matters but submitted that neither the unfair dismissal claim nor the dispute matter were of such complexity as to warrant the granting of permission for legal representation.

[14] In respect of the issue of complexity, the circumstances that surround the basis for the dismissal of the applicant do not appear to be particularly unusual. However, a degree of complexity can be identified as arising from the connection with the related dispute matter. The material under examination in the unfair dismissal matter will apparently be traversed in the dispute matter. There appears to be some level of agreement that there are factual circumstances common to both matters and therefore at least an evidentiary connection. However, the two matters have not been formerly joined and are not scheduled to be heard together but instead sequentially. Consequently, even if only in respect to certain procedural issues, a level of complexity beyond a routine unfair dismissal matter has emerged in this instance.

[15] On balance, I find that the matter has a particular complexity such that it would be dealt with more efficiently with the assistance of legal representatives.

Inability/Effectively - Subsection 596 (2) (b)

[16] The employer advanced an argument that it was unable to represent itself effectively without a lawyer. The inability to effectively represent itself was said to arise from the requirement that the particular person who would otherwise advocate the case for the employer, Mr Moy, would be the primary witness for the employer. Further, it was submitted that the only other person employed by HCF who had experience in these types of matters, (Mr Faulks) had not been involved in preparing materials for the Commission and it would be very difficult for that person to be briefed on the matters prior to hearing.

[17] The AMWU rejected that the employer was unable to represent itself effectively. The AMWU submitted that both Messrs Moy and Faulks had extensive experience in conducting proceedings before the Commission. The submissions of the AMWU stressed that the employer was far from being a small business as it had some 650 employees. The AMWU stressed that although Mr Moy may be the primary witness for the employer he could conduct the case at all times other than when he gave evidence personally.

[18] Upon examination of the respective submissions, I am not convinced that the employer could not effectively represent itself without a lawyer. I believe that as both Mr Moy and Mr Faulks have extensive experience involving frequent appearances before the Commission, either of them would create a “striking impression” or be “impressive” or be “powerful in effect”.

Fairness - Subsection 596 (2) (c)

[19] The issue of fairness between the Parties is a matter of recognised significance. The employer submitted that unfairness would arise if it was denied an opportunity to be represented by lawyers. The AMWU has submitted that as the applicant was represented by a relatively inexperienced legal officer, Mr Lavelle Wilson, who, although qualified, had not been admitted to practice as a solicitor, it would be unfair to permit lawyers to represent the employer.

[20] In this instance if permission for legal representation for the employer was refused, something of an imbalance would emerge whereby it would be represented by the unqualified but experienced Messrs Moy and Faulks, while the applicant would be represented by a legal officer, albeit one with limited experience. This imbalance would not be as profound as that involving circumstances such as those present in the case of Warrell, where one of the Parties was unrepresented and the other representative was a lawyer. However, in this instance, it would seem that an imbalance would at least in appearance, be created if one side had the benefit of a legal officer and the other side had unqualified representatives.

[21] In the present circumstances, in a matter with a certain complexity, it would seem just and proper to avoid the appearance of the applicant having the advantage of a legally qualified representative against the unqualified representatives of the employer. Therefore the fairness criterion would, in this instance, operate to support the granting of the permission sought by the employer.

[22] In view of the conclusions that I have reached in respect of each of the relevant factors contained in subsection 596(2) of the Act, the permission sought by the employer to be represented by lawyers is granted.

[23] By logical extension permission for the employer to be represented by lawyers or paid agents is also granted in respect to the related dispute matter, C2014/649.

COMMISSIONER

Final written submissions:

2014.

August, 28.

September, 3.

 1 Warrell v Walton [2013] FCA 291.

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