Mrs Angela Doyle v Specialty Fashion Group T/A Millers

[2014] FWC 7423

[2014] FWC 7423

FAIR WORK COMMISSION

DECISION

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

Mrs Angela Doyle
v
Specialty Fashion Group T/A Millers
(U2014/10630)

COMMISSIONER CAMBRIDGE SYDNEY, 20 OCTOBER 2014

Application for relief from unfair dismissal.

[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 Angela Doyle (the applicant). The respondent employer is Specialty Fashion Group Limited (ABN 43 057 569 169) (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 4 July 2014, and the applicant is unrepresented. On 8 August 2014, HBL Ebsworth, lawyers, filed a Notice of representative commencing to act on behalf of the employer. On the same day, 8 August 2014, the applicant formerly raised objection to the employer being represented by a lawyer. The employer filed a response dated 29 August 2014.

[4] The matter was listed for conciliation proceedings to be held on 10 September 2014. Initially the applicant did not press the objection to the employer being granted permission to be represented by a lawyer at the conciliation proceedings. However, the applicant subsequently renewed the objection to the employer being represented at the conciliation and the employer advised that it was not prepared to take part in the conciliation in the absence of legal representation.

[5] Consequently, the conciliation proceedings were vacated and 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 applicant filing and serving material on 10 October 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 intentions underpinning s.596 of the Act have 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 conciliation or 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, the employer submitted that those factors found in subsections 596(2) (a) and (b) respectively involving complexity/efficiency and inability/effectively, operated to provide basis for the Commission to grant permission for the employer to be represented by a lawyer. Conversely, the applicant submitted that all of the factors contained in subsection 596 (2) of the Act operated to establish that the Commission should refuse permission for the employer to be represented by a lawyer.

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 termination of the employment of the applicant.

[12] In particular, the employer submitted that complexity arose because there was a jurisdictional objection taken which involved the assertion that the applicant had resigned from employment and was therefore not a person who had been dismissed. The employer submitted that the circumstances of this case were materially different from those in the case of Warrell. The employer submitted that the Commission would be assisted and the proceedings would be more efficient, if lawyers were involved in dealing with this complexity which was not present in the Warrell case.

[13] Alternatively, the applicant rejected the complexity attributed to the matter by those representing the employer. The applicant submitted that the matter for consideration involved questions that were routinely dealt with by the Commission. Further, the applicant submitted that the appearance of legal representation would create unnecessary formality, as was identified in the Warrell Judgment.

[14] In respect of the issue of complexity, the circumstances that surround the termination of the employment of the applicant and the jurisdictional objection raised by the employer do not appear to be particularly unusual issues. Contests surrounding what may be described as an alleged constructive dismissal are commonplace occurrences found in many unfair dismissal claims. Consequently, I am unable to identify a level of complexity beyond that which is presented in a fairly routine unfair dismissal matter.

[15] On balance, I find that the matter has no 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 would be unfair if it was unable to represent itself without a lawyer. The inability to effectively represent itself was said to arise from the requirement that the particular persons who would otherwise advocate the case for the employer, would potentially be witnesses for the employer.

[17] The applicant rejected that the employer was unable to represent itself effectively. The applicant submitted that the fact that a person may be required to be both a witness and an advocate was not relevant to the issue of whether that person can represent themselves effectively. Further, the applicant submitted that the employer’s HR personnel had ample qualifications and experience to be capable of representing the employer effectively.

[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 given the size of the employer’s operation and the qualification and experience of those staff of the employer who would represent it, the relevant individuals would be capable of making 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 did not seek to rely upon this factor. The applicant submitted that if permission was granted for the employer to be represented by a lawyer, an imbalance would be created as the applicant had no experience or qualification in workplace resolution matters.

[20] In this instance, if permission for legal representation for the employer was granted, an imbalance would emerge whereby one of the Parties was unrepresented and the other was represented by a lawyer. Although such an imbalance may have little practical effect for conciliation purposes, particularly given the size of the employer, the resultant imbalance would at least provide the appearance of disproportionate representation on one side.

[21] Consequently, there would be in appearance at least, significant potential for the absence of a fair and just proceeding as was identified by the Federal Court Judgment in the Warrell case. It should be anticipated that the Commission would inevitably act to avoid even the appearance of an unfair process.

[22] Further, as was recognised by his Honour in the Warrell Judgement; “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.” 2 This may be particularly apposite in respect to a conciliation proceeding.

[23] In the present circumstances, applying the reasoning contained in the Judgment in the Warrell case, I consider that unfairness and unnecessary formality would be created by the granting of permission for legal representation. The resultant imbalance created by the perception of more advantageous representation for the employer against the unrepresented applicant should be avoided. Therefore the fairness criterion would, in this instance, operate strongly against granting permission.

[24] In view of the conclusions that I have reached in respect of each of the relevant aspects of subsection 596(2) of the Act, the permission sought by the employer to be represented by a lawyer is refused.

[25] Conciliation proceedings are fixed for 4:00pm on 5 November 2014.

COMMISSIONER

Final written submissions:

2014.

September, 26.

October, 10.

 1 Warrell v Walton [2013] FCA 291.

 2   Ibid @ paragraph 25.

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