Mrs Glenyce Ham v Dr Allan Charles Clarke T/A CJ Orthopaedics Pty Ltd

[2017] FWC 186

[2017] FWC 186

FAIR WORK COMMISSION

DECISION

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

Mrs Glenyce Ham
v
Dr Allan Charles Clarke T/A CJ Orthopaedics Pty Ltd
(U2016/11771)

COMMISSIONER SPENCER BRISBANE, 19 JANUARY 2017

Application for relief from unfair dismissal - legal representation

Introduction

[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 Mrs Glenyce Lorraine Ham (the Applicant). The Respondent is Dr Allan Charles Clarke T/A CJ Orthopaedics Pty Ltd.

[2] The Applicant commenced employment with the Respondent on or about 1 July 2005. At the time the employment contract came to an end, the Applicant was employed as the Practice Manager. The Respondent is a Consultant Orthopaedic Surgeon who owns a private medical practice. The Applicant submitted that she was forced to resign from her employment with the Respondent on 21 September 2016. The Respondent refuted this and submitted the Applicant resigned.

[3] This Decision is made only in respect to the question as to whether the Fair Work Commission (the Commission) should exercise the discretion to grant permission (in accordance with s.596 of the Act) for the Respondent to be represented by lawyers or paid agents.

[4] The application was filed on 24 September 2016, the Applicant being self-represented. The Respondent filed a response dated 28 September 2016 and on 20 October 2016 filed a ‘Notice of Representative Commencing to Act’ which listed Mr Dev Pillay, Senior Associate at Moray & Agnew Lawyers as their representative.

[5] The matter was listed for conciliation on 28 November 2016. The Respondent was represented during the conciliation process. However, the Applicant has raised an objection to the Respondent being represented in the Determinative Conference of the matter.

[6] In response to Directions, the parties have filed material in relation to legal representation for determination on the papers.

[7] While not all of the submissions and evidence in this matter are referred to in this Decision, all of such have been taken into account.

Legislation

[8] The relevant provisions of the Act are set out in s.596(1) and (2):

“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.

...”

Summary of Respondent’s submissions

[9] In recognition that the matter was listed for a Determinative Conference, the Respondent submitted the scope of the limited legal representation sought as follows: the Respondent’s legal representative is present in the court room during the proceedings; the Respondent’s legal representative only addresses the Commission if invited to do so by the Commission; the Respondent’s legal representative is available to provide ad hoc assistance to the Respondent if the Respondent seeks such assistance and the Commission considers it to be appropriate in the particular circumstances.

[10] The Respondent is not seeking leave for his legal representative to directly ask questions of the Applicant (or otherwise directly interact with the Applicant).

[11] The Respondent submitted in support of their argument for legal representation that the matter had some complexity given there is a disputed jurisdictional issue in the proceedings; namely whether the Applicant was dismissed.

[12] In addition, it was submitted that it was relevant that the Applicant and Respondent have experienced a complete breakdown of their longstanding professional relationship.

[13] It was also submitted that legal representation was warranted as the Respondent is concerned about the Applicant’s allegations against him and the complexity of the legal issues involved in the matter.

[14] The Respondent submitted the proposed legal representation will more efficiently deal with the relevant case authority and the presentation of the relevant factual matrix.

[15] It was the Respondent’s submission that, if legal representation was not granted, it would result in unfairness to the Respondent due to the following: the Respondent is likely to experience significant stress during the Determinative Conference due to the nature of the Applicant’s allegations; the Respondent has not previously been involved in proceedings before the Commission and has limited understanding of relevant issues and procedure; and the Respondent has relied heavily on his legal representative for assistance in responding to the application to date because of his surgical commitments.

Summary of Applicant’s submissions

[16] The Applicant objected to legal representation on the following grounds: there was no need for the Respondent to have representation in the court room or to address the Commission; the Respondent having legal representa tion would be extremely intimidating to the Applicant; the provision of “ad hoc assistance” from the Respondent’s representative at the Determinative Conference could be deemed as “preferential”; and it would be unfair if one party is afforded legal representation and not the other.

[17] The Applicant submitted that it is at the discretion of the Commissioner as to whether the Respondent’s legal representation would enable the matter to be dealt with more efficiently, and if it would not be unfair to allow the person to be represented because the person is unable to represent himself, herself or itself effectively.

[18] The Applicant submitted that there was no complexity with the matter, she submitted that she was “forced to resign under duress due to conduct or a course of conduct engaged in by the Respondent 1”, that is, the complete breakdown of the longstanding professional relationship, was due to the continued course of conduct by the Respondent.

[19] The Applicant further submitted that, she doubted that the Respondent would be unable to represent himself effectively at the Determinative Conference, in light of his “stature, nature of professional calling and role”. In addition, the Applicant submitted that the Respondent’s surgical commitments were of no relevance, and as the sole proprietor of the medical practice, the Respondent would be able to adjust his timetable.

[20] The Applicant submitted that she would be disadvantaged if the Respondent was granted legal representation.

Consideration

[21] The Federal Court in Warrell v Walton 2 considered the matter of permission to appear, pursuant to s.596 of the Act. Justice Flick stated:

“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”.

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...” 3

[22] The application of s.596 of the Act allows the Commission to exercise a discretion to grant permission for legal representation in proceedings, however, as set out, this 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

Conclusion

[23] There is some complexity, as the matter also involves a jurisdictional issue, the circumstances of the objection are not straightforward (as to whether the Applicant resigned of her own volition or was constructively dismissed). The jurisdictional matters are interwoven with the merits of the substantive matter. Where the Respondent raises a jurisdictional objection, the onus is on the Respondent to satisfy the Commission of their case.

[24] With respect to the issue of fairness between the parties, with regard to representation of the Respondent, the Applicant will not be disadvantaged or prejudiced by the permission to appear being granted. The Commission has control of the process and the conduct of these proceedings, is being undertaken by Determinative Conference, as explained to the Parties. In addition, as stated, given that the Respondent’s representative has made concessions as to the scope of the legal representation, this has been factored into the consideration of fairness.

[25] The specific facts and circumstances of this matter have been assessed, where the Respondent’s representative has been involved, since submissions were filed in relation to the matter, and there is some complexity to the factual matrix to be assessed against the legal tests as to whether the Applicant resigned or was forced to do so. Therefore, to assist in the efficient, fair and effective conduct of the matter, the Respondent, pursuant to s.596(2)(a) and s.596(2)(b) of the Act, is  granted permission to be represented by a lawyer at the Determinative Conference in this matter. The Respondent's representative made concessions as to the nature of their representation sought, on the basis that the matter is to be conducted by a Determinative Conference. The Commission is responsible for providing a fair process to both parties, and given that the matter is to be conducted via a Determinative Conference, the procedure will be controlled by the Commission, allowing for the equitable presentation of both cases.

[26] As set out, legal representation is granted pursuant to s.596(2)(a) and s.596(2)(b). I Order accordingly.

COMMISSIONER

 1   Applicant’s Objections to Respondent’s Submissions.

 2 [2013] FCA 291.

 3   Ibid at [24]-[25].

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

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