Ms Christina Stonell v Legend Corporate Services Pty Ltd

[2018] FWC 4696

[2018] FWC 4696

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
Section 394 - Application for unfair dismissal remedy

Ms Christina Stonell
v
Legend Corporate Services Pty Ltd
(U2018/6128)

DEPUTY PRESIDENT ANDERSON ADELAIDE, 9 AUGUST 2018

Application for an unfair dismissal remedy – representation – jurisdictional issue – complexity – fairness – permission granted

[1] Ms Christina Stonell 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 her (alleged) dismissal by Legend Corporate Services Pty Ltd (Legend or ‘the employer’). She claims to have been notified of her dismissal on 23 May 2018 and that her dismissal took effect on 24 May 2018.

[2] Legend opposes the application and raises two jurisdictional issues; firstly, an assertion that the application is out of time and secondly, that Ms Stonell resigned and was not dismissed.

[3] On 13 July 2018 conciliation of the application was conducted by a Commission-appointed conciliator. It was not resolved. It was then referred to myself for hearing and determination.

[4] On 18 July 2018 I directed that the extension of time issue be dealt with at a telephone hearing scheduled for 14 August 2018. I directed Ms Stonell and Legend to file materials on the extension of time issue. I have received those materials.

[5] In her written submission Ms Stonell disputes that she requires an extension of time. She claims that her employment ceased by forced resignation on 24 May 2018, not 23 May as the employer asserts. Having lodged her application on 14 June 2018, she says that it was lodged within 21 days.

[6] Legend asserts that Ms Stonell resigned on 23 May 2018 and is out of time because her application was filed 22 days after the (alleged) resignation.

[7] In my directions of 18 July 2018 I required any party seeking to be represented at the hearing of this matter to request permission in writing. Legend seeks permission to be represented by a legal practitioner under section 596 of the FW Act.

[8] Legend’s request for permission is opposed by Ms Stonell who intends to be self-represented at the hearing.

[9] This decision concerns the issue of representation at the hearing, and whether Legend is granted permission to be so represented.

The Legal Principles

[10] 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.”

[11] The granting of permission under section 596 involves a two-step process. The first is that there must be satisfaction that at least one of the criteria in section 596(2) is satisfied. The consideration required by this first step “involves the making of an evaluative judgment akin to the exercise of discretion”. 1 The second is that the discretion conferred by section 596(2) must be exercised in favour of the applicant for permission.2

The Submissions

[12] Legend say that the jurisdictional issues, and in particular the issue whether Ms Stonell was dismissed add legal complexity to the proceedings. Legend also says that the employer’s human resources officer who would otherwise present their case will need to give evidence during proceedings.

[13] Ms Stonell opposes the request on the ground of fairness. She says that it would be unfair to allow the employer to be represented when she intends to be self-represented. She also says that no particular issue of complexity arises.

Consideration

[14] Legend can only be represented by a lawyer (or paid agent) at the hearing with permission of the Commission. 3 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.

[15] 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. 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.” 4

[16] I now turn to the considerations in section 596(2).

Section 596(2) Efficiency

[17] As a general proposition, an application which raises substantive jurisdictional issues involves an additional degree of complexity. Even where facts associated with a jurisdictional issue are simple or not contested, determining that question is a legal matter.

[18] I agree with the general observation of the Commission in CEPU v UGL Resources Pty Ltd where it was said: 5

“…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.”

[19] In this matter, the jurisdictional issue of whether there is a dismissal (and when it took effect) is directly in issue. Resolving this question involves mixed issues of fact and law. Even in circumstances where a party has a clear opinion on whether they resigned, were forced to resign or were dismissed the determination of this question according to law is not necessarily straightforward.

[20] Further, in this matter both the issue of whether there was a dismissal and the issue of when Ms Stonell’s employment ceased (in fact and at law) are in contention.

[21] I am satisfied that these issues raise a sufficient level of complexity, even in the context of the extension of time hearing, which would be more efficiently determined with a legal representative representing one or both parties.

[22] I conclude that section 596(2)(a) is made out. Granting permission for Legend to be represented by a lawyer in these proceedings would enable the jurisdictional matters listed for hearing to be dealt with more efficiently, taking into account complexity.

Sections 596(2)(b) and (c) - Fairness

[23] The fact that sub-section (1) of section 596 is made out does not compel the exercise of the discretion in favour of the person requesting permission. 6 All factors in the section need to be considered, including fairness. 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.

[24] Legend is able to be represented at the hearing without a lawyer. It is an established business employing a human resources officer.

[25] However, section 596(2)(b) concerns itself with “effective” representation. This requires the nature of the hearing to be taken into account. This hearing concerns legal issues. The human resources officer is not a lawyer. Not all human resource practitioners are equipped to effectively discharge this obligation. In this case, I am satisfied that Legend’s human resource officer has no such specific expertise.

[26] For a party to be effectively represented, that party is entitled to expect its representative to make a “striking impression” or be “powerful in effect”. 7 In this matter, the human resources officer is also an intended company witness. If permission is not granted, she would essentially be required to lead her own evidence in chief whilst presenting her employer’s case. That may dilute the impact of the evidence or at least its efficient delivery. This is a relevant factor, though I note that Ms Stonell is in the same position given that she is to be self-represented.

[27] Having regard to the overall circumstances, I find that internal Legend representatives would be unlikely to “effectively” represent the employer in this sense of the word.

[28] I conclude that it would be unfair not to allow Legend permission having regard to my finding that they would not be able to represent themselves effectively on the jurisdictional issues.

[29] 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 (Legend) and other persons in the matter (Ms Stonell). This consideration does not support Legend’s request and is not made out.

[30] Ms Stonell is not legally qualified and has no specific background or expertise in industrial or legal matters. She intends to be self-represented at the hearing. Her apparent limited familiarity with the fair work unfair dismissal jurisdiction is as a lay person and as a consequence of seeking to exercise her unfair dismissal rights.

[31] Having regard to fairness between the parties, it would not be unfair to refuse the employer’s request.

Conclusion

[32] The considerations of efficiency in the proceedings and effective representation by the employer weigh towards a grant of permission under section 596.

[33] The issue of fairness between the parties weighs against such a grant.

[34] In exercising the discretion each factor in section 596(2) does not have to be made out although each should be considered.

[35] I am satisfied that permission should be granted particularly having regard to the fact that the hearing is a jurisdictional hearing considering mixed issues of fact and law.

[36] However, I will impose conditions on the grant of permission that take into account fairness between the parties. They are:

1. Should it be necessary, I will, consistent with my independent role as a statutory decision-maker, intervene directly during the hearing and provide an appropriate level of guidance to Ms Stonell on the conduct of proceedings and the taking and testing of evidence, so as to be satisfied that she is able to understand the issues, present her case and test that of the employer; and

2. 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.

[37] This application remains listed for hearing of the extension of time issue on 14 August 2018, as set out in my directions of 18 July 2018.

[38] I put both Ms Stonell and Legend on notice that given the factual dispute apparent on the written materials before me concerning the circumstances in which Ms Stonell came to cease her employment, the hearing on 14 August 2018 will require the taking of oral evidence from Ms Stonell and from the employer, should the factual differences remain unresolved. It may also involve making findings on whether Ms Stonell resigned, and if so when her employment ceased.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

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 1   Asciano Services Pty Ltd v Hadfield[2015] FWCFB 2618 at [19]

 2   Calleri v Swinburne University of Technology[2017] FWCFB 4187 at [36]

 3 Section 596(4) does not apply in this matter

 4   Explanatory Memorandum to the Fair Work Bill 2008 at paragraph 2291

 5   [2012] FWA 2966 per Senior Deputy President Richards at [23]

 6   Warrell v Fair Work Australia [2013] FCA 291 at [24]

 7   CEPU v UGL Resources Pty Ltd [2012] FWA 2966 per Senior Deputy President Richards at [16]