Mrs. Wendy Smith v Aboriginal Hostels Limited

[2020] FWC 3977

[2020] FWC 3977

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Mrs. Wendy Smith
v
Aboriginal Hostels Limited
(U2020/6868)

COMMISSIONER RIORDAN SYDNEY, 6 AUGUST 2020

Application for an unfair dismissal remedy.

[1] On 18 May 2020, Ms Wendy Smith (the Applicant), filed with the Fair Work Commission (the Commission) an application (the Unfair Dismissal Application) for an unfair dismissal remedy, pursuant to section 394 of the Fair Work Act 2009 (the Act). The Unfair Dismissal Application named Aboriginal Hostels Limited (the Respondent) as the respondent.

[2] On 11 June 2020, Mills Oakley Lawyers filed a Form F53 on behalf of the Respondent seeking to be its legal representative throughout this matter. Further, on 27 July 2020, Mills Oakley Lawyers filed an amended Form F53 on behalf of the Respondent. The amended Form F53, updated the individual proposed as the representative of the Respondent. This Decision concerns whether the Respondent is to be granted permission to be represented.

Submissions with Respect to Representation

[3] On 8 July 2020, my Chambers wrote to Mills Oakley Lawyers asking them to file written submissions as to why the Commission should permit the Respondent to be represented at the Hearing.

[4] Mills Oakley Lawyers filed submissions on 13 July 2020, on behalf of the Respondent, in accordance with the above direction.

[5] It is the Respondent’s submission that the following factors should be considered when the Commission determines whether to grant the Respondent permission to be represented.

•  The Respondent plans to call nine indigenous witnesses that are under the age of sixteen. These witnesses have special needs in relation to their cultural sensitives.

•  The Applicant is self-represented, thus the Respondent being granted permission to be represented would assist the Commission to deal with the matter more efficiently.

•  Permission to be represented includes preparation of submissions and witness statements and thus the Respondent being granted permission to be represented would assist the Commission to deal with the matter more efficiently

•  The Respondent potentially plans to call fourteen witnesses and thus the Respondent being granted permission to be represented would assist the Commission to deal with the matter more efficiently.

•  The Respondent is to submit a report authored by an external service provider outlining an investigation into the Applicant’s conduct (the CPM Report). It was submitted that the CPM Report introduces a high level of complexity which would justify the Respondent being represented.

[6] On 21 July 2020, the Applicant filed her submission in support of the Unfair Dismissal Application. These submissions contained the following statement, objecting to the Respondent being granted permission to be represented.

“In respect to representation in this matter, I would be greatly disadvantaged in this process if the Respondent is allowed legal representation in this matter which I cannot afford.” 1

Statutory Provisions

[7] Section 596 of the Act governs whether a lawyer or paid agent is able to appear before the Commission.

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 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.

(My emphasis)

[8] Section 596(1) of the Act determines that a lawyer may only appear with the permission of the Commission. Section 596(2) of the Act outlines when the Commission may grant permission for a party to be represented. Section 596(2) of the Act provides three conditions, one of which must be met before the Commission is empowered to grant permission for a party to be represented.

Consideration

Section 596 (2)(a) - it would enable the matter to be dealt with more efficiently, taking into account the complexity of the matter.

[9] The Respondent submitted that as a result of the diverse and voluminous nature of the CPM Report as well as the number of witnesses to be called the matter can be fairly characterised as complex. Further, the Respondent submitted that as a result of this complexity the Commission should grant leave for the them to be represented. A Full Bench of the Commission in King v Patrick Projects Pty Ltd(King)[2015] FWCFB 2679 traversed a similar argument. At [15] - [17] the Full Bench stated:

“[15] The complexity of the subject matter of the proceedings is the key consideration under s.(596)(2)(a) of the Act. In Urbanski v MSS Security Pty Ltd it was found that, even if legal representation would enable a matter to be dealt with more efficiently, a lack of complexity in the matter may still mean that permission to appear is declined.

[16] The Respondent seeks to assert that this matter is complex because of the high volume of documents and wide range of issues in the Appellant’s statement some of which are irrelevant to the issue of unfair dismissal.

[17] We do not find that this matter is one that can be characterised as complex. The Members of the Commission routinely deal with applications which are voluminous in size and riddled with materials extraneous to the application. This commonplace occurrence does not constitute legal or factual complexity. Sheer volume of documents or the existence of extraneous issues to the application will not in and of itself equate to complexity for the purposes of s.(596)(2)(a) of the Act.” 2

(My emphasis)

[10] As was the case in King, the evidence submitted in this matter does not justify the matter being considered complex. The Respondent’s Form F3 provides that the Applicant was terminated for serious misconduct. There is no complex legal issue that arises from their argument, it is simply a matter of conflicting evidence.

[11] In a recent decision of the Commission in Luke McGrath v Sunnyfield Disability Services [2020] FWC 2120, Commissioner Cambridge stated, at [17];

“the Commission generally recognises and appreciates the assistance that a lawyer might provide, and which ordinarily would enable the matter to be dealt with more efficiently, the prospect of such assistance should be contemplated in cases where clear complexity can be identified.” 3

[12] Even if representation would result in the matter being dealt with more efficiently, its benefits would be marginal. This is not a case where clear complexity can be identified, I am not satisfied that the test outlined in section 596 (2)(a) of the Act has been met.

Section 596 (2)(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.

[13] I accept that the Respondent’s HR manager has been identified as a possible witness in these proceeding. However, having dealt with the Respondent via conference in the unfair dismissal proceedings of the Applicant and the Applicant’s husband, I am confident that the Respondent has employees who could provide advocacy in a simple unfair dismissal hearing. Mr Sette, for example, is an extremely competent employee, who undertook the advocacy in the last Conference before me.

Section 596 (2)(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.

[14] Section 577(a) of the Act mandates that the Commission exercise its powers in a fair and just manner. In Warrell v Fair Work Australia [2013] FCA 291 Flick J, of the Federal Court of Australia, found that, in some circumstances, this objective is not met by allowing one party to be represented while the other party is not. 4

[15] In the context of the Applicant’s limited financial resources, it is highly unlikely the Applicant is going to obtain legal assistance. I find that the result of granting the Respondent permission to be represented would create an imbalance between the parties.

[16] The issue in relation to the cultural sensitivities of having nine indigenous youth give evidence is of paramount importance. This issue needs to be dealt with appropriately whilst at the same time proving the Applicant procedural fairness.

[17] After undertaking some research of what transpires in other jurisdictions, such as the Youth Koori Court, I have determined that the necessary protection of the indigenous youth is best served by the presence of an Aboriginal Elder, not a lawyer. As a result, the Commission is in the process of ensuring the attendance of an Aboriginal Elder at the location where the nine students will give their evidence.

Conclusion

[18] As I have outlined above, I am not persuaded that sections 596(2)(a), (b) or (c) of the Act have been satisfied.

[19] As such, permission for the Respondent to be represented is denied.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

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 1   Applicant’s Outline of Submissions dated 21 July 2020 [16]

 2   King v Patrick Projects Pty Ltd(King)[2015] FWCFB 2679, at [15] – [17]

 3   Luke McGrath v Sunnyfield Disability Services [2020] FWC 2120 at [17]

 4   Warrell v Fair Work Australia [2013] FCA 291 at [27]