Ms Kellie Smith v Australian Leisure & Hospitality Group Pty Limited
[2019] FWC 3771
•21 JUNE 2019
| [2019] FWC 3771 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Ms Kellie Smith
v
Australian Leisure & Hospitality Group Pty Limited
(U2018/12783)
| Deputy President Asbury | BRISBANE, 21 JUNE 2019 |
Application for an unfair dismissal remedy – s. 596 Representation by lawyers and paid agents – Complex jurisdictional objection – Legal representation would allow the matter to be dealt with more efficiently taking into account its complexity – Fairness does not override efficiency considerations based on complexity in the present case – Permission for the Respondent to be represented by a lawyer granted.
Background
Ms Kellie Smith applies to the Fair Work Commission (the Commission) under s. 394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy in respect of her alleged dismissal by the Australian Leisure & Hospitality Group Pty Limited (ALH Group). This decision relates to an application made by ALH Group for permission to be represented by Mr Andrew See of Counsel at the hearing of Ms Smith’s application. Ms Smith opposes the application made by ALH for permission for legal representation.
At a mention on 1 April 2019, the parties were directed to file and serve submissions and other material in relation to the question of whether permission for the Respondent to be represented by a lawyer should be granted. The parties were informed in an email on 14 May 2019 that if they wished to be heard in relation to the matter of legal representation they should advise the Commission by 4.00 pm on 15 May 2019 and that in the absence of advice the matter would be determined on the basis of the material on the file.
ALH Group filed submissions in support of permission being granted for it to be legally represented at the hearing. ALH Group also filed an affidavit of Mr Ezra Pyers, Human Resources Business Partner. Ms Smith filed submissions in opposition to permission being granted and tendered a number of documents in relation to Mr Pyers’ professional qualifications. I have had regard to all of that material.
Pursuant to section 596 of the Act a person may be represented in a matter before the Commission by a lawyer or paid agent only with permission of the Commission. Section 596 of the 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.”
ALH Group’s submissions and evidence
Section 596(2)(a)
ALH Group submits that in the present case representation is not simply a matter of preference but one of efficiency and effectiveness having regard to the complexity of the case. The Applicant contends that she was constructively dismissed by being forced to resign by the employer as a consequence of being denied regular hours of work based on her casual contract of employment. The following issues have been identified as being critical and complex by ALH Group:
· Has there been a constructive dismissal?
· Can a casual worker claim constructive dismissal based on a reduction of working hours, in the absence of any guaranteed minimum weekly hours of work?
· Can the Commission imply terms into the contract of employment of a casual employee, where otherwise the law provides that each engagement is a discrete and separate period of employment?
ALH Group submits Ms Smith’s application poses complex and significant legal issues, the consequences of which have a potentially wide ranging impact on the operation of the Respondent. These issues are said to arise out of the decisions in Workpac v Skene[1] and City of Sydney RSL and Community Club Limited v Balgowan[2] and need to be considered in the present case.
ALH also submits that the Commission is not required to assess whether an internal resource of the Employer could represent it adequately, but whether having regard to all relevant facts and factors the Commission can undertake its task more efficiently if ALH Group’s legal representative was granted permission to appear.
ALH Group also submits that s.596(2)(a) requires the Commission to turn its mind to the question as to whether allowing it to be legally represented would enable ALH Group’s case to be dealt with more efficiently and whether in turn, this would allow the matter as a whole to be dealt with more efficiently. Conversely, ALH Group submits the Commission should consider whether the entire matter can be dealt with more efficiently if the representative creates more efficiency in the management of ALH Group’s case, including the assistance that may be provided to the Commission by virtue of clarification of submissions, guiding of witnesses and summarising and arguing the merits of the case and making submissions on points of law.
Section 596(2)(b)
ALH Group submits that although it is a large organisation, it is unable to represent itself effectively in the proceedings. In support of this assertion, ALH Group relies on the evidence of Mr Pyers who states that he does not believe that he would be able to represent ALH Group effectively.
Mr Pyers states that the he has relied on external providers of employment relations advice and advocacy for matters arising in Queensland and New South Wales, and that the same is true of ALH Group’s National Human Resources Manager. Mr Pyers also states that he is the sole person responsible for providing human resources advice for approximately 5600 people, and that this “lean model” provides little capacity for hiring in-house specialists for industrial and employment law, and further that he has little opportunity to dedicate the time and resources required to address such matters or to be technically proficient in industrial and employment law. He further states that he has no experience in representing the ALH Group in claims of unfair dismissal, and would not be able to assist the Commission as efficiently as a legal representative as he is not as proficient in putting forward arguments or clarifying legal submissions.
ALH Group refers to the decision of Senior Deputy President Richards in Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) v UGL Resources Pty Limited (Project Aurora) which provides as follows:
“In the context used in the s.659(2)(b) of the Act, the adverb “effectively” is used to condition the verb “to represent”. Thus, a person must be unable to represent himself, herself or itself effectively in order for the requisite permission to be granted. It seems sufficiently clear that Parliament did not intend that permission to be represented be granted when a person is unable to be represented “satisfactorily”, “sufficiently” or “adequately” etc. These are not the adverbs that Parliament has put to work in s.596(2)(b) of the Act. Rather, the adverb performing the conditioning work upon the verb “to represent” in s.596(2)(b) of the Act is “effectively”.
It appears, then, that before permission to be represented can be granted, a person must be unable to represent himself, herself or itself effectively, and following the plain language definitions of the Macquarie Dictionary (Revised Third Edition) and the Australian Concise Oxford Dictionary (Third Edition), this means the person must be unable to represent himself, herself or itself in a manner that creates a “striking impression”, or which has an “impressive” effect or which is “powerful in effect”.
In this definitional context, it might not be unusual for a person to be unable to represent himself, herself or itself “effectively”.” [3]
ALH Group submits that given the complexity involved in this matter, Mr Pyers would not be able to effectively represent ALH Group. Notwithstanding that AHL Group is a large employer its business model means that it does not have specialist skills on hand within the organisation to conduct its case. Further it submits that a right to effective representation is a central requirement to ensuring all parties receive a fair and just hearing for the purposes of section 577 of the Act.
Section 596(2)(c)
ALH Group refers to the decision of Flick J in Warrell v Walton[4] and distinguishes the circumstances of that case from the circumstances in this matter. In that case, his Honour observed that:
“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 which provided in relevant part as follows:
2291. FWA is intended to operate efficiently and informally and, where appropriate, in a non-adversarial manner. Persons dealing with FWA would generally represent themselves. Individuals and companies can be represented by an officer or employee, or a member, officer or employee or an organisation of which they are a member, or a bargaining representative. Similarly, an organisation can be represented by a member, officer or employee of the organisation. In both cases, a person from a relevant peak body can be a representative.
2292. However, in many cases, legal or other professional representation should not be necessary for matters before FWA. Accordingly, cl 596 provides that a person may be represented by a lawyer or paid agent only where FWA grants permission.”
In Warrell, the Respondent was granted permission to be represented by a lawyer in circumstances where the Applicant was unrepresented and had a significant impairment due to brain damage. It was held in that case that no consideration was given to s.596(2) of the Act, or the manner in which the discretion was to be exercised even if s.592(a), (b) or (c) was satisfied.
ALH Group states that the facts in the present case are markedly different and that it asks the Commission to satisfy itself that one or more of the conditions in s.596(2) exists, and then whether or not the discretion should be exercised. Further, it submits that to the extent that the Explanatory Memorandum can be relied on to interpret s. 596 of the Act, it does not identify the types of cases that are or are not caught by the overarching claim that in most cases legal representation will not be necessary.
ALH Group submits that it is important to make clear that whilst a decision to grant permission for a party to be represented by a lawyer may fundamentally change the dynamics and manner in which a hearing is conducted, it also may have little, if any, impact at all. In Fitzgerald v Woolworths Limited[5] a Full Bench of the Commission repeated the view established in Warrell, that the legislative intent underpinning s.596 of the Act was supportive of an approach founded on informal procedure and void of unnecessary formality. Yet such an approach and the dictates of s.577 of the Act need not be at odds with the desire of a Respondent to be legally represented in proceedings. ALH Group submits that a legal representative is equally capable (and sometimes more so) of adopting and submitting to informal procedures and dispensing with unnecessary formality, so as to assist in ensuring that the objectives of this Commission in achieving fairness and efficiency when dealing with complex matters, will be met.
ALH Group submits that discretion should be exercised to grant it permission to be legally represented and that the main issue is whether or not it would be unreasonable or manifestly unjust, in such a case where one of the limbs of s. 596(2) was satisfied, if the discretion was not exercised, particularly given the complexity of the matter, the ramifications to the ALH Group’s business and the likelihood that none of the requirements of Section 577 of the Act would be disturbed.
ALH Group notes that while Ms Smith is representing herself in this matter, it is clear that she has received assistance in the advancement of her case. ALH Group also refers to the decision of Hunt C in Nirmal Singh v Aerocare Fligth Support Pty Ltd[6]where it was stated that when granting a lawyer the right to appear, “all necessary and appropriate assistance will be afforded by the Commission to (the Applicant) at the hearing to ensure procedural fairness, and that there is no disadvantage by any lack of understanding of issues or hearing processes.”. ALH Group asserts there appears no reasons why similar assistance could not be afforded to Ms Smith.
Ms Smith’s submissions
Section 596(2)(a)
Ms Smith submits that the matter involves little complexity beyond that created by ALH Group’s legal representative. Ms Smith notes that the ALH Group has acknowledged that that her working hours were reduced and submits that, as her casual employment was on a regular and systematic basis, she can claim constructive dismissal for reduction in hours.
Ms Smith submits that Mr Pyers is able to effectively and efficiently represent ALH Group given the limited complexity involved in the matter.
Section 569(2)(b)
Ms Smith submits that no matter how lean ALH Group’s human resources model is the Company has a dedicated human resources team who have greater resources than Ms Smith as a self-represented applicant. Ms Smith submits that Mr Pyers holds a post graduate qualification in human resources and has been in his position within ALH Group for about six years. Ms Smith also tendered Mr Pyers’ LinkedIn profile which states that in a previous role Mr Pyers was involved in: “Supporting and advising managers with performance management including disciplinary actions, appraisals, salary reviews, and workforce planning up to and including fair work hearings…”. According to Ms Smith, Mr Pyers’ own stated skills indicate that he can effectively and efficiently represent the Company at a hearing in the Commission.
Section 596(2)(c)
Ms Smith referred the Commission to the decision of Cambridge C in Azzopardi v Serco Sodexo Defence Services Pty Limited[7], where the Commissioner noted that if the Respondent was given permission to have legal representation this would create potential for the absence of a fair and just hearing as identified in Warrell v Walton. A similar decision was made in Gupta v Murrin Murrin Operations Pty Ltd[8], where the Commissioner also found that a significant imbalance would be created if permission was granted to the Respondent.
Ms Smith also submitted that s.577 of the Act contains a notion of procedural fairness and states that the Commission must perform its functions in a manner that is quick, informal and avoids unnecessary technicalities. According to Ms Smith, allowing ALH Group to be legally represented would counter the principles of this provision.
Ms Smith also relies on the decisions in Kennedy v Qantas Ground Services Pty Ltd[9] and Rodl v Qantas Airways Pty Ltd[10] where in both cases the Commission placed weight on the Explanatory Memorandum to the Act as to the approach where legal representation is sought. Ms Smith submits that in both cases the Commission found the Respondent was a large organisation, with a dedicated HR department and it was decided in both cases that the matter would not have been more efficient, and the allowance of a legal representative would sway the balance of fairness between the parties.
CONSIDERATION
Section 596(1) of the Act relevantly provides that a person may be represented in a matter before the Commission by a lawyer or paid agent only with the permission of the Commission. This reflects the general position that a party before the Commission must normally appear on his or her own behalf. Section 596(2) of the Act provides that the Commission may grant permission for a person to be represented by a lawyer or paid agent in a matter only if the Commission is satisfied in relation to one or other of the matters in s. 596(2)(a) – (c). These matters are a constraint upon the discretionary power to grant permission. Each of the matters must be considered and weighed to determine whether one or other of them is satisfied to determine whether the exercise of the discretion to grant permission is triggered. It is then necessary to determine whether in all of the circumstances, the discretion should be exercised. I turn now to consider those matters in the context of the present case.
The first is whether the grant of permission would enable the matter to be dealt with more efficiently, taking into account its complexity. I do not accept the Applicant’s submission that this is a matter that involves little complexity or that the complexity has been created by the Respondent’s legal representative.
The background and the matters in dispute can be briefly stated. In an application filed on 18 December 2018, Ms Smith alleged that she had been constructively dismissed and that her dismissal took effect on 26 November 2018. The Respondent asserted that Ms Smith had not been dismissed. The Respondent sought that the jurisdictional objection be dealt with prior to participating in conciliation. The matter was listed for hearing on 11 March 2019. Prior to the hearing I listed the matter for mention/conciliation/directions on 5 March 2019. On 4 March 2019 Ms Smith filed a further application claiming that her employment had been terminated on 11 February 2019.
At the conference on 5 March 2019 Ms Smith was granted an adjournment to decide whether she wished to amend her unfair dismissal application in terms of the second application or whether she wished to press her original application. The hearing date of 11 March 2019 was vacated in the circumstances. A further conference was held on 8 March 2019 at which Ms Smith sought and was granted permission to amend her unfair dismissal application in the terms of the second application filed on 4 March 2019. In light of this amendment further Directions were issued for the filing and service of witness statements and outlines of submissions.
In her amended application, Ms Smith asserts that she is a casual employee who performed work on a regular and systematic basis for an extended period and that her work was performed predominantly in one area. Ms Smith further asserts that she was issued a warning on 26 November 2018 that was both procedurally and substantively incorrect and that her hours were reduced thereafter to the point she was forced to tender her resignation. That forced resignation is said by Ms Smith to amount to constructive dismissal.
The Respondent contends that the Applicant was not dismissed and that any reduction in her hours as a result of the disciplinary action taken by the Respondent was not repudiation of the Applicant’s contract of employment or a demotion. The Respondent has also indicated that it will press arguments about the relevance of repudiation in the context of casual employment.
The Applicant has sought disclosure of a range of material including CCTV footage and telephone records from a number of persons. The Applicant has also sought to tender additional statements from a number of witnesses. Further, the Applicant has foreshadowed that she may seek to have attendance notices issued to other employees of the Respondent. It is clear that the Applicant seeks to have the Commission make various findings including that the warning she received in November 2018 is invalid. It is also arguable that the Applicant seeks other relief from her unfair dismissal application that is arguably not within the power of the Commission to grant.
I am satisfied that the matter is complex. While the hearing will deal with the merits of the application as well as the jurisdictional objection, the jurisdictional objection is complex. The jurisdictional objection is more than a simple factual dispute and will require familiarity with relevant case law in both the Commission and the Courts. In this regard, the jurisdictional objection in the present case is not of the kind where the facts are determinative and the outcome is unarguable if those facts are established.
Even if there is no factual dispute that the Applicant’s hours were reduced, the issue for determination involves the effect of the reduction in the hours on the Applicant’s employment contract, rather than the reduction in hours per se. The determination of the jurisdictional objection will involve analysis of the law in relation to casual employment and whether a casual employee can be constructively dismissed by virtue of a reduction in hours of work. For these reasons, I am satisfied that it would enable the matter to be dealt with more efficiently, taking into account its complexity, if the Respondent was given permission to be legally represented.
In relation to whether it would be unfair not to allow the Respondent (as the party seeking permission) to be represented because it is unable to represent itself effectively, I have had regard to the fact that the Respondent is a large and well-resourced company. The Respondent has a dedicated human resource management professional. Mr Pyers, the Respondent’s Human Resources Business Partner, has (according to his LinkedIn profile tendered by Ms Smith) a Master’s Degree in Human Resource Management and significant experience in that field. Mr Pyers has also had experience “up to and including Fair Work hearings.”
Notwithstanding this I do not accept that Mr Pyers can effectively represent the Respondent in the present proceedings. While Mr Pyers may have previously had some involvement in Commission hearings and may be able to effectively represent the Respondent in an unfair dismissal application, he does not have legal experience or experience that would enable him to represent the Respondent effectively in advancing a legal argument in relation to a complex jurisdictional objection.
I have also had regard to the fact that the jurisdictional objection to be taken by the Respondent is one of some significance to its operations given the number of casual employees it employs and the nature of the Applicant’s claims. I am satisfied that it would be unfair not to allow the Respondent to be legally represented in a complex jurisdictional argument that has potentially broader implications beyond the dismissal of the Applicant.
In relation to fairness between the Respondent and the Applicant I accept that there is some unfairness to the Applicant if the Respondent is given permission to be legally represented given that the Applicant is not represented. I also accept that the Applicant has not had assistance from a lawyer to prepare her case but has relied on assistance from friends and family members in this regard. However, this unfairness is balanced by the fact that the fact that the Respondent’s representative is a legal practitioner with a duty to assist the Commission. Further, it is the role of the Commission to ensure a fair hearing and to ensure that the Applicant is not disadvantaged by a lack of understanding about the process of the hearing.
In all of the circumstances, I have concluded that unfairness to the Applicant does not outweigh the consideration of efficiency in dealing with the matter in light of its complexity or fairness to the Respondent as the party seeking to be represented. Accordingly I am satisfied that the discretion to grant permission for the Respondent to be legally represented is triggered on the bases of s.596(2)(a) and to a lesser extent s.596(2)(b).
I am also satisfied that the discretion should be exercised and the Respondent should be given permission to be represented by a lawyer in the matter. In deciding to exercise the discretion in s. 596 of the Act I have also had regard to the fact that the jurisdictional objection is to be heard and determined with the merits of the application. This is most efficient way to deal with the Applicant’s unfair dismissal application on the basis that the question of whether the Applicant’s employment ended at the initiative of the Respondent because of conduct or a course of conduct engaged in by the Respondent cannot be neatly separated from the merits of the application. Further, to separate the determination of the jurisdictional objection and the merits would be prejudicial to both parties on the basis that if the jurisdictional objection does not succeed, they would be required to participate in a further hearing on merits involving further time and inconvenience.
Accordingly, permission for the Respondent to be legally represented is granted. The matter will now be listed for hearing and further Directions will be issued in relation to the date and time of that hearing.
DEPUTY PRESIDENT
<PR708890>
[1] [2018] FCAFC 131 (16 August 2018).
[2] [2018] FWCFB 5.
[3] [2012] FWA 2966
[4] [2013] FCA 291
[5] [2017] FWCFB 2797
[6] [2016] FWC 3128
[7] [2013] FWC 3405
[8] [2016] FWC 2300
[9] [2018] FWC 1818
[10] [2018] FWC 1935
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