Ms Geraldine Hooker v Coffee Break Cafe

[2013] FWC 6657

[2013] FWC 6657

FAIR WORK COMMISSION

REASONS FOR DECISION

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

Ms Geraldine Hooker
v
Coffee Break Cafe
(U2013/8883)

COMMISSIONER LEWIN MELBOURNE, 11 SEPTEMBER 2013

Application for relief from unfair dismissal.

[1] In this matter Ms Geraldine Hooker has applied for an unfair dismissal remedy in relation to the alleged termination of her employment by Coffee Break Cafe under s. 394 of the Fair Work Act 2009 (the Act)

[2] The application was the subject of a conciliation conference which was unsuccessful in bringing the matter to a resolution.

[3] The Commission issued Directions for the filing of witness statement and submissions by the parties and the matter was listed for hearing on Wednesday, 3 September 2013.

[4] At the hearing permission was sought by the Applicant to be represented by a lawyer. The relevant statutory provisions governing the representation of persons before the Commission are set out in s.596 of the Act and are reproduced below:

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.

[5] Mr Toohey of counsel made submissions in support of the grant of permission by reference to these provisions. While the submission ranged over various considerations they were ultimately encapsulated as follows:

“[I]t's my submission that the Commission should grant me permission to appear because, firstly, it will allow the jurisdictional hearing and arbitration to be dealt with more efficiently in light of the differing factual events prescribed by each party. It will allow the jurisdictional argument to be heard by the commission efficiently when dealing with the complexity of the jurisdictional argument that the applicant abandoned her employment. It will allow the jurisdictional argument to be heard by the commission efficiently, given that the respondent's second language is English, her first language being, as I understand it, Cantonese, and will be assisted during the jurisdictional hearing arbitration by a translator.

It would not be in my submission, sir, unfair to permit the applicant to be represented, as she could not effectively represent herself. When considering the fairness between the applicant, who was an individual, and the respondent, which is a company, it would not be unfair to allow counsel to appear, as the respondent has greater access to resources than an individual and, as I indicated before, in the past it appears that she had been represented by two different firms of solicitors.

The respondent has not provided witness statements and submissions in accordance with the directions of the Fair Work Commission to allow the applicant to fully understand the jurisdictional objection to be determined. Counsel will assist the commission by ensuring only relevant and admissible evidence is led by the three witnesses. Granting permission to appear to counsel will enable the matter to be dealt with efficiently and consistent with the commission's obligations pursuant to sections 577 of the Fair Work Act 2009 of the Commonwealth and, finally, is supported on the facts of the application and consistent relevant authorities. So I think, sir, I can do no more than put those matters to you.

In effect, we say that it would be unfair, certainly given that the respondent had been represented apparently by two different firms of solicitors in the past - it would be unfair to say in effect, well, look, she decides - and I say this with the greatest of respect to her - she decides to come along unrepresented. That's her decision, so that decision really shouldn't be held against us, in the sense that, well, she's not represented and so we shouldn't be. She would have, I would have thought, had every means to have herself represented if she so decided, but she's made that decision and in my respectful submission it would be unfair that, that being the case, we should be prevented or Mrs Hooker should be prevented from being represented given that the respondent has made her choice on that matter.” 1

[6] After considering these submissions I decided not to grant the permission sought. When doing so I stated that written reasons would be provided. These are those written reasons.

[7] The application for permission should be considered having regard to the relevant statutory provisions and the intent of the Parliament when making those provisions. I gave consideration to these matters and the legislative policy evident in the statute at length in Lekos v Zoological Parks and Gardens Board t/a Zoos Victoria 2. The decision of the Federal Court of Australia in Warrell v Walton [2013] FCA 291 relation to the relevant statutory provisions is authoritative and guides my reasoning.

S. 596 (1) (a) Fair Work Act 2009

[8] I will commence dealing with the application with reference to the statutory provisions of s596 (1) (a) of the Act.

[9] The matter before the Commission includes a jurisdictional objection by the Respondent, such that it is alleged that Ms Hooker was not dismissed but rather left the employment of her own volition. It was conceded by Mr Toohey that this will be determined by reference to evidence of the facts and circumstances of the termination of the employment, which are addressed in the written material filed by the Applicant and the Respondent.

[10] The Applicant has filed two witness statements and written submissions, both of which have been prepared by a firm of solicitors.

[11] On what is before me, I do not consider the factual issues to be addressed for the purpose of dealing with the jurisdictional objection to be complex. In my judgement those issues can be resolved efficiently, without the need to grant permission for the Applicant to be represented by a lawyer. In my view, given the limited scope of the factual issues to be dealt with, no more efficiency would be achieved by the grant of such permission.

[12] I am not persuaded that a lawyer will offer any particular assistance having regard to the first language of the Respondent being Mandarin (not Cantonese) and requiring an interpreter. How a lawyer would provide greater efficiency in such circumstances seems to me to be somewhat mysterious.

S. 596 (1) (b)

[13] It is submitted that the Applicant is unable to represent herself effectively. Nothing but Mr Toohey’s judgement of the Applicants capacity to do so is advanced to persuade me of this. It is submitted that the Applicant is anxious and apprehensive. That is to be expected to some degree of any person involved in proceedings before a Court or Tribunal. However, beyond the usual course of such concern there is nothing by way of evidence to convince me that Ms Hooker is lacking in ordinary capacity to deal with the issues in this matter. Accordingly, I am not persuaded that the Applicant cannot deal with the circumstances of the hearing effectively. Moreover, the Applicant’s case is already substantially before me as a result of the filing of the witness statements and submissions on her behalf pursuant to the Commission’s directions, which have been professionally prepared by lawyers.

[14] Additionally, the Respondent is not legally represented and therefore it is not the case that the Applicant need have any anxiety which might arise from cross examination by a trained and experienced solicitor or barrister. The Respondent’s case in support of the jurisdictional objection has been filed on paper and is simple, straight forward and of very limited scope.

S. 596 (1) (c)

[15] No issue of unfairness to the Applicant arises, taking into account fairness between the Applicant and the Respondent. Each will be self represented if permission is not granted for the Applicant to be represented by a lawyer. It was submitted that the Respondent had not filed written statements and whilst previously advised by a lawyer has chosen not to be represented by a lawyer at the hearing. However, as already noted, the Respondent has filed a written statement, which addresses the circumstances under which the employment came to an end, in the Mandarin language, together with an appropriate translation by a registered Professional Translator in accordance with appropriate procedure and certification of the National Accreditation Authority for Translation and Interpretation. The Respondent has also filed a ‘Form 3: Employer’s Response to Application for Unfair Dismissal Remedy’, in which is set out 11 paragraphs of coherent response to the Applicant’s case. Finally, as with the Respondent, the Applicant has been advised by lawyers during the preparation and filing of her case. There is therefore no procedural unfairness as between the Applicant and the Respondent which could be said to arise from the Applicant being unaware of the defence mounted by the Respondent to the application, or the Respondent having had legal advice, as is implied by the submission.

[16] Having considered the relevant statutory provisions I decided not to grant the permission sought for the above reasons.

Appearances:

Ms Hooker on behalf of the Applicant

Ms Chin on behalf of the Respondent

Hearing details:

Before Commissioner Lewin

2013

Melbourne:

3 September 2013.

 1   Transcript PN86

 2   [2011] FWA 1520

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