Mrs Mini Joseph v Plenty Valley Community Health Ltd

[2014] FWC 8197

[2014] FWC 8197

FAIR WORK COMMISSION

DECISION

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

Mrs Mini Joseph
v
Plenty Valley Community Health Ltd
(U2014/10943)

COMMISSIONER WILSON MELBOURNE, 19 NOVEMBER 2014

Application for relief from unfair dismissal - application to be represented by a lawyer or paid agent

[1] An application has been made by the Applicant seeking relief from unfair dismissal.

[2] On 7 November 2014, I issued Directions for the hearing of the application, including reference to the filing of material to determine the matter of representation by a lawyer or paid agent for any party who wished to be so represented.

[3] The Respondent sought to be represented and filed written submissions in accordance with my Directions. The Applicant did not seek to be represented, and objected to the grant of representation in favour of the Respondent. This decision is based on the written material provided by the parties with respect to the question of representation.

Legislation

[4] Section 596 of the Fair Work Act 2009 (the Act), which regulates when a party may be represented by a lawyer or paid agent in proceedings before the Commission, 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.

(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 employersthat 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.

Respondent submissions

[5] The Respondent provided detailed submissions on the issue of representation, arguing that a grant of permission to be represented would enable the matter to be dealt with more efficiently (s.596(2)(a) of the Act) and also on the ground that the Respondent is unable to represent itself effectively (s.596(2)(c) of the Act).

[6] With respect to efficiency and complexity of the matter, the Respondent argued that the grant of permission to be granted would result in greater efficiency by reason that:

• Counsel might assist in the proper running of the application;



• There are significant and profound conflicts in the evidence, the navigation of which would be assisted by the cross examination of the Applicant by Counsel;



• The Applicant raises a number of issues that the Respondent contends are not relevant, and Counsel will be able to assist the Commission in its ‘forensic task’;



• The hearing involves a serious allegation of misconduct in the workplace, and Counsel would be able to assist the Commission in relation to the facts of the case and the application of the law.

[7] With respect to the Respondent’s ability to represent itself effectively, the Respondent argued that it is unable to represent itself effectively as a community health provided that does not have access to any in-house legal or industrial relations expertise. The Human Resources Manager does not have legal training and has limited experience as an advocate in the Fair Work Commission, and further, is a witness for the Respondent.

Applicant submissions

[8] The Applicant provided short written submissions on the issue of representation, copied below:

“I have not engaged any solicitor or paid agent for my case to be represented before the Honorable Camber’s (sic) I have very serious objection for the respondent to be represented by a solicitor/legal representative.

In the above circumstances I humbly request that the respondent the Honorable (sic) Chambers may be pleased to reject the offer of the request of plenty valley community health to be represented by a solicitor or paid agent”. 1

Consideration

[9] The proper interpretation of s.596 of the Act was considered by Flick J of the Federal in Warrell v Walton [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”.” 2

[10] It is well established that in order for permission for representation to be granted under this section, the Commission must first determine if there exists a jurisdictional perquisite to the exercise of discretion by virtue of at least one of the three conditions in s.596(2) of the Act being met. The Commission must then decide whether or not to exercise the discretion to grant permission. 3

[11] The points raised by the Respondent in its submissions regarding representation identify a number potentially complex issues concerning the nature of the evidence in terms of conflicting material, relevance, and factual complexity. I agree with the submissions of the Respondent, and I consider that the granting of permission for the Respondent to be represented would enable the matter to be dealt with more efficiently.

[12] I also note that the Human Resources Manager of the Respondent, who has limited advocacy experience, is a witness in the matter, which lends strength to the argument that the Respondent would be unable to represent itself effectively should I refuse permission for the Respondent to be represented.

[13] Taken together, the above supports a finding that the ground set out in s.596(2)(a) of the Act, and to some extent also s596(2)(b), have been met in this matter.

[14] In light of this, I have decided to exercise the discretion available to the Commission to grant permission to the Respondent to be represented by a lawyer, noting that:

• The assistance of Counsel in efficiently dealing with issues of conflicting material, relevance and factual complexity would enable the substance of the unfair dismissal application to be dealt with more expeditiously which is to the Applicant’s advantage;



• I do not consider that legal representation will of itself result in greater formality in the proceedings than would otherwise be the case; and



• The Act also requires the Commission to have regard to fairness for all parties, not solely one party at the expense of the other party/parties.

[15] For all these reasons, I consider that the requirements of s.596 of the Act had been met and granted the Respondents permission to be represented by a lawyer.

COMMISSIONER

 1   Email from the Applicant to Chambers, dated 13 November 2014, at 7:35pm.

 2 Accepted by the Full Bench of the Commission as the correct approach to s.596 of the Act in New South Wales Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office[2014] FWCFB 1663

 3   Appellant v Respondents [2014] FWCFB 4297; Emily Oratis v Melbourne Business School[2014] FWCFB 3869, [5].

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