Mr Travis Vermeeren v TC & VS Baker Pty Ltd
[2018] FWC 6148
•3 OCTOBER 2018
| [2018] FWC 6148 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
Section 394 - Application for unfair dismissal remedy
Mr Travis Vermeeren
v
TC & VS Baker Pty Ltd
(U2018/7416)
DEPUTY PRESIDENT ANDERSON | ADELAIDE, 3 OCTOBER 2018 |
Application for an unfair dismissal remedy – legal representation – request by employer opposed by applicant – Small Business Fair Dismissal Code – section 596 Fair Work Act 2009 - permission granted on conditions
[1] Mr Travis Vermeeren (the applicant) has applied to the Fair Work Commission (the Commission) under section 394 of the Fair Work Act 2009 (the FW Act) for an unfair dismissal remedy in relation to his (alleged) dismissal by TC & VS Baker Pty Ltd (‘the employer’). He claims to have been unfairly dismissed on 6 July 2018. At the date of dismissal he was employed as a Pest Technician.
[2] The employer operates a pest control business. It is a small business within the meaning of the FW Act. It opposes the application. It claims to have dismissed Mr Vermeeren on 6 July 2018 for misconduct and that its dismissal was consistent with the Small Business Fair Dismissal Code.
[3] On 16 August 2018 conciliation of the application was conducted by a Commission-appointed conciliator. It was not resolved. It was referred to me for hearing and determination.
[4] On 11 September 2018 I conducted a directions hearing and issued directions that same day. I directed that the hearing on 25 October 2018 deal with all issues in dispute, being the merits and remedy (including Small Business Fair Dismissal Code compliance).
[5] At the directions hearing the employer foreshadowed that it would seek to be represented by a legal practitioner at the hearing of the matter. Mr Vermeeren foreshadowed that he would oppose such a request.
[6] The parties were directed to file written materials on legal representation. Each has done so. I now determine that question.
[7] Section 596 of the FW 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.”
[8] The principles governing the application of section 596 of the FW Act were recently summarised by a full bench of this Commission in Grabovsky v United Protestant Association of NSW Inc.:1
“Subsection 596(1) provides that a person ‘may’ be represented in a matter before the Commission by a lawyer or paid agent ‘only’ with the permission of the Commission. Subsection 596(2) provides that the Commission may grant permission ‘only if’it is satisfied as to the existence of one of the circumstances set out in s.596(2)(a) to (c). The use of the word ‘may’ makes it clear that a decision about whether to grant permission to be represented is discretionary. But that discretion is only enlivened if the Commission is satisfied as to the existence of one or more of the circumstances set out in s.596(2)(a) to (c).
Even if one of the requirements in s.596(2)(a) to (c) is satisfied that is simply the condition precedent to the exercise of the discretion conferred by s.596(2). The satisfaction of any of the requirements in s.596(2)(a) to (c) does not of itself dictate that the discretion is automatically to be exercised in favour of granting permission.
While a decision to grant or refuse permission for a party to be represented by a lawyer or paid agent is an interlocutory decision, it is not properly characterised as a mere procedural decision. As Flick J observed in Warrell v Watson:
‘It is a decision which may fundamentally change the dynamics and manner in which a hearing is conducted.’
For completeness we would note that the power to grant or refuse permission for legal representation in s.596(2) does not carry with it the power to select who that legal representative would be, either by reference to the individual identity of the lawyer or whether the lawyer is a barrister or solicitor, nor does it empower the Commission to choose which member of a party’s legal team might represent the party in proceedings.” (footnotes omitted)
[9] The employer says that the resolution of whether its dismissal was consistent with the Small Business Fair Dismissal Code is a legal question. It says that the proceedings will involve complexity because all issues (Code compliance, merits and remedy) are being heard at the same time. It says that mixed questions of fact and law arise. It says that the employer has no specialist personnel able to effectively present its case on such issues. It says that as a small family business it requires the assistance of a legal practitioner.
[10] Mr Vermeeren opposes the request on multiple grounds. He says that it would be unfair as he will be self-represented because he is unable to afford the cost of legal representation. He says that his application raises no technicalities requiring lawyers. He says the Small Business Fair Dismissal Code issue is not overly complex. He says that the employer could represent itself at least as well as he could represent himself. He also says that the determination of the matter should be by conference to enable the Commission to provide guidance to self-represented parties.
Consideration
[11] The employer (or Mr Vermeeren for that matter) can only be represented by a lawyer (or paid agent) at the hearing with permission of the Commission.2 Whether to grant permission is a discretionary matter made having regard to the factors set out in section 596(2) of the FW Act: efficiency (in the context of the complexity of the matter); fairness (in the context of the capacity of the person seeking permission to effectively represent themselves); and fairness between the parties.
[12] A relevant starting point for the exercise of the discretion is that granting permission should be seen as a departure from the default position that a party in a matter before the Commission must normally appear on its own behalf (to paraphrase the words of Flick J in Warrell). This proposition is consistent with the statutory scheme:
“FWA is intended to operate efficiently and informally and, where appropriate, in a non-adversarial manner. Persons dealing with FWA would generally represent themselves.”3
[13] I now turn to the considerations in section 596(2).
Section 596(2) Efficiency
[14] This matter self-evidently involves a threshold issue concerning whether Mr Vermeeren’s dismissal was consistent with the Small Business Fair Dismissal Code. The proceedings will involve all aspects of the dispute, as the hearing will also take evidence and submissions on merits and remedy, in addition to this threshold issue.
[15] While the application and the employer’s response suggest that the factual issues are relatively confined, it is quite probable on a perusal of the materials filed to date that factual disputes emerge on the evidence, and will require resolution. It is also the case that compliance with the Small Business Fair Dismissal Code, as well as broader unfair dismissal considerations under section 387 of the FW Act involves an examination of the investigation conducted by the employer.
[16] Thus the hearing of this matter, even on a relatively narrow factual framework, involves mixed questions of law and fact. This involves some but not a high level of complexity.
[17] I agree with the general observation of the Commission in CEPU v UGL Resources Pty Ltd where it was said:4
“…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.”
[18] I am satisfied that legal representation, at least by the party raising the threshold issue, will assist to a limited degree with those matters being dealt with more efficiently having regard to their complexity.
[19] Section 596(2)(a) is made out.
Sections 596(2)(b) and (c) - Fairness
[20] The fact that sub-section (1) of section 596 is made out does not compel the exercise of discretion in favour of the person requesting permission.5 All factors in the section need to be considered, including fairness, although not all factors need be made out.
[21] Sub-sections 596(2)(b) and (c) require fairness to be considered in two contexts: fairness in the context of the capacity of the person seeking permission to effectively represent themselves; and fairness between the parties.
[22] The employer is a small business. Responding to litigation, calling witnesses, conducting cross examination and making submissions on fact and law to a quasi-judicial tribunal is not in the skill set of its personnel.
[23] The employer may receive part-time personnel support from its daughter (as asserted by the applicant) but it has no in-house expertise or experience in employment matters, industrial law or advocacy.
[24] Having regard to the overall circumstances, I find that the employer would be unable to represent itself effectively if permission is not granted.
[25] Section 596(2)(b) is made out.
[26] I now turn to sub-clause 596(2)(c) of section 596. This sub-section requires the Commission to take into account fairness between the person seeking permission (TC & VS Baker Pty Ltd) and other persons in the matter (Mr Vermeeren). This consideration does not support the employer’s request and is not made out.
[27] Mr Vermeeren is a young man who is not legally qualified and has no specific background or expertise in industrial or legal matters. He intends to be self-represented at the hearing because he says the cost of representation is prohibitive. He is simply a lay person seeking to exercise his unfair dismissal rights.
[28] Having regard to fairness between the parties, it would not be unfair to refuse the employer’s request.
Conclusion
[29] The consideration of efficiency in proceedings weighs marginally towards a grant of permission under section 596.
[30] The consideration of effective representation by the employer weighs strongly towards a grant of permission under section 596.
[31] The issue of fairness between the parties weighs strongly against such a grant.
[32] In exercising my discretion each factor in section 596(2) does not have to be made out although each should be considered.
[33] I am satisfied that permission should be granted particularly having regard to the fact that the employer is a small business and legitimately raises a threshold issue involving mixed questions of fact and law which the FW Act requires the Commission to determine, and that some issues of credit may arise in proceedings.
[34] However, I consider that imposing conditions on representation is appropriate, particularly having regard to the issue of fairness between the parties.
[35] One such condition concerns the mode of determination. Mr Vermeeren says that determination by conference would be more informal, and as a self-represented applicant, more conducive to the effective presentation of his case. 6 The employer says that it will abide by any condition the Commission sees fit to impose should permission be granted.7
[36] I take into account the statutory scheme which provides that determination by hearing should “not” be held unless the Commission considers it appropriate after taking into account the views of the parties and whether that course “would be the most effective and efficient”.
[37] I am cognisant of the fact that Mr Vermeeren is self-represented. I give weight to that fact. I do so particularly in the context of this decision wherein I have granted permission to the employer to be represented by a legal practitioner. As noted by the Commission in Asciano Services Pty Ltd v Hadfield:
“The more informal procedures of a determinative conference may be more appropriate for a self-represented litigant…” 8
[38] I consider there to be no inherent reason why a legal practitioner representing a party needs to do so from the familiarity of a courtroom. The fact that the employer is to be so represented, with permission, is not a reason for not conducting proceedings by conference.
[39] The more substantive issue is whether the nature of these proceedings is more effectively conducted through evidence in conference or evidence in the witness box.
[40] Neither option is unworkable. The factual issues appear to be narrowly framed. Just how extensive the factual conflicts are remains to be seen, as well as whether their resolution involves matters of credit or recall. It is likely, though, that issues of credit will arise. While factual issues in dispute are readily tested through the orthodox setting of a witness box, a properly structured conference still provides for the giving and testing of evidence by examination and cross examination, even though proceedings are conducted more informally.
[41] I will list the matter for determination by conference, as sought by Mr Vermeeren, at least in the first instance.
[42] Consistent with the provisions of section 399(3) of the FW Act and the power to inform myself in such manner as I consider fit (section 590(1) FW Act), should I consider it appropriate at any stage of proceedings to proceed by way of hearing rather than conference I will inform the parties, seek their further views and make a further determination.
Conclusion
[43] Under section 596 of the FW Act I grant permission for TC & VS Baker Pty Ltd to be represented by a lawyer in matter U2018/7416 on the following conditions:
1. Should it be necessary, I will, consistent with my independent role as a statutory decision-maker, intervene directly during the proceedings and provide an appropriate level of guidance to Mr Vermeeren on the conduct of proceedings and the taking and testing of evidence, so as to be satisfied that he is able to understand the issues, present his case and test that of the employer;
2. I will, at least in the first instance, determine the matter by conference; and
3. Should circumstances alter or if I form the view that the employer’s legal representative is not contributing to the efficient conduct of proceedings, I will consider whether the grant of permission should be revoked.
[44] This application remains listed for determination commencing on 25 October 2018, as set out in my directions of 11 September. That determination will, in the first instance, be by conference.
DEPUTY PRESIDENT
Printed by authority of the Commonwealth Government Printer
<PR701017>
1 [2018] FWCFB 4362 at [35] – [38], 31 July 2018
2 Section 596(4) does not apply in this matter
3 Explanatory Memorandum to the Fair Work Bill 2008 at paragraph 2291
4 [2012] FWA 2966 per Senior Deputy President Richards at [23]
5 Warrell v Fair Work Australia [2013] FCA 291 at [24]
6 Written Submission of Travis Vermeeren 26 September 2018 paragraph 4.1
7 Written Submission of TC & VS Baker Pty Ltd 19 September 2018 paragraph 33
8 Asciano Services Pty Ltd v Hadfield[2015] FWCFB 2618 at [20]
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