Ms Meenakshi Callychurn v Australia and New Zealand Banking Group T/A ANZ

[2015] FWC 4784

[2015] FWC 4784

The attached document replaces the document previously issued with the above code on 14 July 2015.

At paragraph 2, line 3, the words ‘late June’ are replaced with ‘8 July’

Associate to Commissioner Wilson

Dated 16 July 2015

[2015] FWC 4784 [Note: An appeal pursuant to s.604 (C2015/4858) was lodged against this decision - refer to Full Bench decision dated 15 September 2015 [[2015] FWCFB 5254] for result of appeal.]

FAIR WORK COMMISSION

DECISION

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

Ms Meenakshi Callychurn
v
Australia and New Zealand Banking Group T/A ANZ
(U2015/7113)

COMMISSIONER WILSON MELBOURNE, 14 JULY 2015

Application for relief from unfair dismissal - application to be represented by a lawyer or paid agent.

[1] An application has been made by the Applicant, Ms Callychurn, seeking relief from unfair dismissal, which has been allocated to me for a hearing on its merits.

[2] Through correspondence to the Fair Work Commission, first on 29 June 2015 and later on 8 July 2015, the Respondent sought to be represented by a lawyer and provided short written submissions in support of its request. In its 8 July correspondence, the Respondent sought that this matter be determined prior to the hearing, which was originally scheduled for 23 and 24 July 2015 (but which has since been moved to 10 and 11 August 2015).

[3] The Applicant does not seek to be represented, and objected to the grant of representation in favour of the Respondent and provided short submissions on the subject to be taken into account.

[4] In the course of a mention hearing conducted by me on 13 July 2015, I granted permission to the Respondent be represented by a lawyer. This decision was based on the written material provided by the parties and the matters referred to within the mention hearing.

Legislation

[5] Section 596 of the Fair Work Act 2009 (the Act), which regulates when a party may be represented by a lawyer or paid agent in proceedings before the Commission, 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.

(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.

Background to the procedural decision

[6] As background to the Respondent’s submissions and the matters that require determination by the Commission, I note that the letter of termination issued to Ms Callychurn dated 2 April 2015, and attached to her application for unfair dismissal remedy, refers to the following two reasons for her termination;

“Both of the following reasons give ANZ cause to terminate your employment, as both
are serious, and both warrant termination. These reasons are:

1) You are unable to perform the inherent requirements of your role as a Credit
Assessment Officer, in light of ASIC's recent decision to ban you from engaging in 'credit activities' for five years; and/or

2) ANZ no longer has trust and confidence in you to be forthright and honest in your communication with us, following your failure:

a. to seek approval and declare your outside business interest, namely you being the sole director of Unique Mortgage Services Pty Ltd (UMS) and the sole key person and fit and proper person under UMS' credit licence; and

b. to be forthright during the disciplinary meeting on 31 March and 2 April 2015.” 1

[7] The documents filed by both parties include the outlines of submission of both parties and a witness statement of Ms Callychurn, who will be the only person giving evidence on behalf of the Applicant; and witness statements from two people on behalf of the Respondent, Nitin Jain and Louisa Jeschke. Those documents broadly confirm that the matters set out above are the factors requiring determination by the Commission in the forthcoming merits hearing.

Respondent submissions

[8] The Respondent’s written submissions on the issue of representation argue that a grant of permission would enable the matter to be dealt with more efficiently (s.596(2)(a) of the Act), as well as on the grounds that it would be unfair if it was not allowed to be represented, because it is unable to represent itself effectively (s.596(2)(b) of the Act).

[9] With respect to efficiency and complexity of the matter, the Respondent argues that the grant of permission would result in greater efficiency by reason that:

• The decision by the Australian Securities and Investment Commission (ASIC) on 27 February 2015 to ban the Applicant from engaging in credit activities was one of the reasons for Ms Callychurn's dismissal. That decision, together with an application by Ms Callychurn in the Administrative Appeals Tribunal (AAT) to overturn the ASIC ban, cause complexity in the matter before this Commission. It will be necessary to both adduce evidence on the subject as well as to provide submissions to the Commission on the implications of the ASIC ban and the AAT proceedings. Efficiency will be brought to such necessity through the representation of the Respondent through external Counsel.



• The credit of the Applicant will be an important matter requiring determination in these proceedings. The Applicant’s credit is called into question in two respects; firstly whether she was open and transparent with the Respondent in relation to the ASIC ban; and secondly whether she disclosed or obtained the necessary approval to hold outside business interests the Respondent considered to be in conflict with its own business. While there is an instructing solicitor on the staff of the Respondent with familiarity with the circumstances of the matter, she does not have the necessary advocacy skills or experience.

[10] The Respondent noted that the existence of other related actions has been considered to be a factor that supports the granting of permission for a party to be represented by a lawyer; 2 that a matter which has involved issues of credit witnesses and the need for cross examination has led to a grant of permission for representation;3 and that an inability to represent oneself would be an inability to represent in a manner which creates a striking impression, or which has an impressive effect, or which is powerful in effect.4

[11] The Respondent also advanced the argument that its staff solicitor’s lack of experience and advocacy skills in relation to the argument meant it would be unfair if it was not allowed to be represented, because it would be unable to represent itself effectively. The Respondent also put forward that while it has other legal and employee relations resources it would be unfair if it was effectively required to brief another employee on this matter, since that would require the other employee to clear their own work schedule.

[12] In the course of the mention hearing on 13 July 2015, the Respondent’s solicitor advised me that the cross examination of Ms Callychurn was expected to be short and that, subject to what might be expected from her cross examination of the Respondent’s witnesses, the present allocation of a two-day hearing may not be necessary.

Applicant submissions

[13] The Applicant provided short written submissions on the issue of representation, which included the following about the relevance of the AAT proceedings;

“2. If it was not evident before, it should be clearly evident that the matters before the AAT raise no issue in relation to the Applicant’s employment with ANZ, rather it raises issues which are being heard de novo in which the correct and preferable decision will be made, as any matters hitherto as considered by the delegate do not form any part of a judgement that Commission could have regard to.

3. Whilst all of the remedies are available to the AAT sitting in the shoes of the original decision maker in relation to whether it affirms the decision, sets it aside, remits it, it also is empowered to undertake variation or cancellation of the orders pursuant to s 83 (1-5) including specifying which credit activities or specified credit activities in specified circumstances or capacities that can be undertaken as reflected under s 81 (1) of the National Consumer Credit Protection Act 2009 (the NCCP Act) and is relatively straight forward.”

[14] The Applicant also argued;

• That “no complexity” was apparent if the Commission found that her dismissal was unfair and that reinstatement could not be facilitated since other options might be available;



• The AAT decision may have relevance to this Commission’s decision, if the AAT matter is decided before this matter;

[15] Ms Callychurn also put forward that the issue of unfairness to the Respondent in the event that it was not granted permission for representation by a lawyer did not arise because of the significant resources to which the Respondent has at its disposal. In effect she argues that, since the Respondent is a large organisation with considerable resources at its disposal it would, if pressed, the able to find a suitable person within its staff in order to be able to represent it.

[16] Ms Callychurn also argues that a grant to the Respondent to be represented by a lawyer would be an unfairness to her, for the reason that she will not be represented in the forthcoming proceedings. She also points to other decisions of the Commission on the subject of permission for representation, including in which the following propositions were developed;

• unfairness to an employer does not arise merely because their staff member is inexperienced; 5



• distinguishing a case cited by the Respondent, in which the applicant’s credit was also in question, and where they were represented by an experienced union official, a matter of fairness between the parties led to permission for the respondent to be represented; 6



• the resources at an employer’s disposal may be a factor to be taken into account; 7



• that in a case where neither party would be represented because of a decision about s.596, while such arrangement may be inconvenient to them and not their preference, that does not equate to unfairness within the meaning of the Act; 8 and



• in a matter not involving complexity, it was noted that the Commission’s ability and duty to accord procedural fairness to the parties in an unfair dismissal matter is conditional upon legal representatives being present to represent a particular party. 9

Consideration

[17] The proper interpretation of s.596 of the Act was considered by Flick J of the Federal Court in Warrell v Walton [2013] FCA 291:

“[24] 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”.” 10

[18] It is well established that in order for permission for representation to be granted under this section, the Commission must first determine if there exists a jurisdictional prerequisite to the exercise of discretion by virtue of at least one of the three conditions in s.596(2) of the Act being met. The Commission must then decide whether or not to exercise the discretion to grant permission. 11 The task of determining whether any of the criteria in s.596(2) is satisfied involves the making of an evaluative judgment akin to the exercise of a discretion.12

[19] In respect of s.596(2)(a), even if legal representation would enable a matter to be dealt with more efficiently, a lack of complexity may still mean that permission is refused. 13 Sheer volume of documents or the existence of extraneous issues does not equate to complexity.14 While the consideration of complexity must be treated as a matter of significance in consideration of this criterion, ultimately the issue is whether the grant of permission would enable the matter to be dealt with more efficiently.15

[20] The points raised by the Respondent in its submissions regarding representation identified a number of potentially complex issues concerning the nature of the evidence in terms of conflicting material, relevance, and factual complexity.

[21] In the mention hearing conducted in this matter, Ms Callychurn made the point that the ASIC ban and the AAT proceedings were entirely separate to the matters requiring determination in these proceedings, and that it was unnecessary to dissect them in forming a view about whether or not Ms Callychurn was unfairly dismissed.

[22] After consideration of the materials before me at this time, I am not persuaded that is the case. This is a matter where the Respondent, at the time of Ms Callychurn's dismissal, raised two complaints about her. On the one hand the Respondent said that the fact of the ASIC ban was sufficient to cause her to no longer be able to perform the inherent requirements of her role as a Credit Assessment Officer. On the other hand, the Respondent says that, also justifying dismissal, it lost trust and confidence in her as a result of what are alleged to be her outside business interests, together with her alleged failure to be forthright to the Respondent in disciplinary meetings in March and April 2015.

[23] As a result, it is unlikely that the matter would be able to proceed at this time without significant analysis of the fact and import of the ASIC ban, as well as the whole of the circumstances relating to the Respondent’s allegations about Ms Callychurn's outside business interests.

[24] Taken collectively, these are matters which involve some measure of complexity for resolution by the Commission as presently constituted. I make the point that complexity could be resolved through agreed facts between the parties about firstly the basis and import of the ASIC ban and secondly the factual circumstances of the alleged outside business interests. However there are no agreed facts put to the Commission on these matters and so it is likely, in my opinion, that they will require determination in the usual way in the merits hearing.

[25] In forming my views about the extent to which the criterion within s.596(2)(a) may have been met, I take into account what the Respondent says about the need to form views about the Applicant’s credit, as well as to make submissions about the import of the disputed matters, and that such may be assisted through a practitioner skilled in cross examination. I also take into account that the Respondent’s solicitor agrees with the proposition that, subject to the Applicants need for cross examination of the Respondent’s witnesses, a two-day hearing may not be necessary.

[26] As a result, I consider the foregoing to support a finding that the grounds set out in s.596(2)(a) of the Act has been met in this matter.

[27] I am, however, unpersuaded of the Respondent’s submission in relation to the criterion within s596(2)(b), that it would be unfair if it was not allowed to be represented, because it is unable to represent itself effectively. Such a proposition is not properly made out within the material provided by the Respondent thus far. In this regard I note the Full Bench has found that the relevant test in relation to this criterion is not an assessment of the skills and education of the individual representative, but rather an examination of the resources available to the respondent has a whole. 16 The Respondent has only put generalities to me on this subject, and I do not accept them as discharging the onus of an examination of the respondent as a whole.

[28]
For these reasons, I consider that the requirements of s.596 of the Act have been met and grant the Respondent’s request for permission to be represented by a lawyer.

COMMISSIONER

Appearances:

Ms M Callychurn on her own behalf

Mr A Lambert (solicitor) and Ms F Forrest for the Respondent

Hearing details:

2015.

Melbourne

13 July (by telephone)

 1   Application for Unfair Dismissal Remedy, Attachment 2

 2   Kent v CITIC Pacific Mining Management Pty Ltd[2012] FWA 377, at [2]

 3   Changan v Linfox Australia Pty Ltd T/A Linfox Linehaul[2014] FWC 2790, at [8]

 4   CEPU v UGL Resources Pty Limited (Project Aurora)[2012] FWA 2966, at [16]

 5   Hamilton v Carter Holt Harvey Wood Products Australia Pty Ltd[2012] FWA 5219, at [10], undisturbed on appeal

 6   Changan v Linfox Australia Pty Ltd T/A Linfox Linehaul[2014] FWC 2790, at [8]

 7   King v Patrick Projects Pty Ltd[2015] FWCFB 2679, at [18]

 8   Bowley v Trimatic Management Services Pty Ltd T/A TSA Telco Group[2013] FWC 1320, at [13]

 9   Nix v Australian Food Group Pty Ltd[2015] FWC 3223, at [13]

 10 Accepted by the Full Bench of the Commission as the correct approach to s.596 of the Act in New South Wales Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office[2014] FWCFB 1663

 11   Appellant v Respondents [2014] FWCFB 4297; Emily Oratis v Melbourne Business School[2014] FWCFB 3869, at [5].

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

 13   King v Patrick Projects Pty Ltd[2015] FWCFB 2679, at [15]

 14   Ibid, at [17]

 15   Singh v Metro Trains Melbourne[2015] FWCFB 3502, at [16]

 16   King v Patrick Projects Pty Ltd[2015] FWCFB 2679, at [18]

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