Ms Maria Marzella v GrainCorp Operations Ltd

[2014] FWC 8986

[2014] FWC 8986

FAIR WORK COMMISSION

DECISION

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

Ms Maria Marzella
v
GrainCorp Operations Ltd
(U2014/12051)

COMMISSIONER SPENCER BRISBANE, 11 DECEMBER 2014

Application for relief from unfair dismissal - legal representation

[1] This Decision involves an application for unfair dismissal remedy made pursuant to s.394 of the Fair Work Act 2009 (the Act). The application was made by Maria Marzella (the Applicant). The Respondent is GrainCorp Operations Ltd.

[2] This Decision is made in respect to the question as to whether the Fair Work Commission (the Commission) should grant permission for the Respondent to be represented by lawyers or paid agents.

[3] The application was filed on 27 August 2014, the Applicant being self-represented. The Respondent filed a response dated 9 September 2014 which listed Sparke Helmore Lawyers as their representative.

[4] The matter was listed for conciliation on 23 September 2014. The Respondent was represented during the conciliation process. However, the Applicant has raised an objection to the Respondent being represented in proceeding to the hearing of the matter.

[5] In response to Directions, the parties have filed material in relation to legal representation for determination on the papers.

[6] While not all of the submissions and evidence in this matter are referred to in this Decision, all of such have been taken into account.

Legislation

[7] The relevant provisions of the Act are set out in s.596(1) and (2):

“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.

...”

Summary of submissions

[8] The Respondent submitted that the Respondent’s legal representative may be able to provide assistance to the Commission to enable the matter to be dealt with more efficiently, taking into account:

“...

• The matter is the subject of a jurisdictional objection;



• The merits of the application itself



• The applicant has indicate that her witness statement is incomplete and therefore there may be a need to consider and address any new evidence during the hearing;



• There is a question concerning coverage of the applicant’s employment by a modern award



• There are a number of issues in dispute...”

[9] The issues for arbitration include the jurisdictional objection as to the redundancy, requiring evidence in relation to contested issues that include: whether the Respondent required the Applicant’s position to be performed by anyone; whether there were changes in the Respondent’s operational requirements which required making the Applicant’s position redundant; whether there was a position available at the time of the Applicant’s redundancy, for her to be redeployed to; and whether a Modern Award applied to the Applicant’s employment and if so, whether the Respondent failed to consult with the Applicant about the redundancy in accordance with its obligations under that Award.

[10] The Applicant submitted that the Commission is set up for parties to engage without legal representation. Further, the Applicant submitted that having legal representation was not assisting in bringing about a settlement.

[11] The Applicant referred to a without prejudice offer from the Respondent’s legal representative on behalf of the Respondent, submitting that the letter was intimidatory.

Consideration

[12] The Federal Court in Warrell v Walton 1 considered the matter of permission to appear, pursuant to s.596 of the Act. Justice Flick stated:

“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...” 2

[13] The application of s.596 of the Act allows the Commission to exercise discretion to grant permission in formal proceedings, however, as set out, this is not automatic. The discretion afforded to the Commission will be exercised on the facts and circumstances of the particular case, against the legislative tests. 3

[14] There is some complexity to the matter, with the Respondent having to defend the substantive matter and jurisdictional objection. Where the Respondent raises a jurisdictional objection, the onus is on the Respondent to satisfy the Commission of their case. 4

[15] The Applicant has sought Orders for the productions of documents in relation to redeployment, the redundancy and a prior grievance. Orders to attend have also been issued at the request of the Applicant and four of the Respondent’s employees will appear to give evidence at the hearing, and therefore the efficient handling by a legal representative would assist.

[16] With respect to fairness between the parties, whilst representation of the Respondent is granted, the Applicant will not be significantly disadvantaged or prejudiced by the permission to appear being granted.

Conclusion

[17] Accordingly, on the specific facts and circumstances of this matter, where the representative has been involved since the commencement of the matter, to assist in the efficient, fair and effective hearing of a number of witnesses and documents and some matters with potential complexity, the Respondent is granted permission to be represented by a lawyer at the hearing in this matter. The Applicant has to date been afforded procedural guidance with the consent of the parties.

[18] I Order accordingly.

COMMISSIONER

 1 [2013] FCA 291.

 2   Ibid at [24]-[25].

 3   Rodgers v Hunter Valley Earthmoving Company Pty Ltd [2009] FWA 572.

 4   Crema and Others v Abigroup Contractors[2012] FWA 5322, Commissioner Cribb, at [81].

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