Ms Muria Roberts v TasTAFE
[2024] FWCFB 449
•6 DECEMBER 2024
| [2024] FWCFB 449 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.604 - Appeal of decisions
Ms Muria Roberts
v
TasTAFE
(C2024/7477)
| VICE PRESIDENT GIBIAN | SYDNEY, 6 DECEMBER 2024 |
Permission to be represented – Appeal against decision [2024] FWC 2586 of Commissioner Lee made on 26 September 2024– Appellant opposes grant of permission to be represented – s 596 of the Fair Work Act 2009 (Cth) – Whether representation would enable the Commission to deal with the matter more efficiently taking into account the complexity of the matter – Appeal involves legal questions of some potential complexity and a significant volume of evidentiary material – Representation will enable appeal to be dealt with more efficiently – Whether discretion should be exercised to grant permission – Whether unfairness will be caused to the appellant is permission is granted for the respondent to be represented – Permission to be represented granted to the respondent.
Introduction
Ms Muria Roberts (the appellant) seeks permission to appeal and to appeal from a decision of Commissioner Lee. The Commissioner’s decision arose from an application by the appellant for the Commission to deal with a general protections dispute involving an alleged dismissal under Part 3-1 of the Fair Work Act 2009 (Cth) (the Act). The Commissioner found that the appellant had not been dismissed for the purposes of s 386 of the Act and dismissed her application.
TasTAFE (the respondent) seeks permission under s 596 of the Act to be represented by Ms Bobbi Murphy of counsel in relation to the appeal, which is listed for hearing on Wednesday, 11 December 2024. The appellant opposes permission being granted. Both parties filed written submissions in relation to the question of representation. The respondent requested that the Full Bench determine the question of representation in advance of the hearing of the appeal. The Full Bench accepts that that course is sensible.
Section 596 of the Act sets out the circumstances in which the Commission may grant permission for a party to be represented in a matter before the Commission. The section 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.
As will be apparent, s 596(1) dictates 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. Section 596(2) constrains the discretion of the Commission to grant permission for a person to be represented by a lawyer or paid agent. The Commission may grant permission “only if” one of the circumstances in at least one of subparagraph (a), (b) or (c) exist. Even if one of those requirements is satisfied, the Commission must then exercise a discretion as to whether permission should be granted.[1]
In Lee v Superior Wood Pty Ltd[2020] FWCFB 1301; (2020) 295 IR 242, the Full Bench explained the approach to be adopted when determining if permission to be represented should be granted in the following terms (at [25]):
As a result, in applying the approach set out above the assessment of whether permission should be granted under s 596 potentially involves a two-step process. The first is consideration as to whether one or more of the criteria in s 596(2) is satisfied. The consideration required by this first step “involves the making of an evaluative judgment akin to the exercise of discretion”. It is only where the first step is satisfied that the second step arises, and involves a consideration as to whether in all of the circumstances the discretion created should be exercised in favour of the party seeking permission.
The respondent relies only on the ground in s 596(2)(a). It submits that representation would assist the Commission in dealing with the matter more efficiently due to the complexity of the matter on the basis that the matter concerns the agitation of a jurisdictional issue. The respondent additionally submits that the appellant’s conduct of her case adds complexity in that the appellant has “made broad propositions that attempt to relitigate matters already determined”. Finally, the respondent submits that representation by counsel would enable the matter to be deal with more efficiently as a result of counsel’s expertise and familiarity with relevant caselaw.
The appellant submits that the matter is not complex but instead involves matters that are “procedural and factual in nature”. Although a jurisdictional matter is raised, the appellant submits that the principles to be applied in relation to s 386 of the Act are well-established. The appellant further submits that the granting of permission may result in unfairness to her as she is self-represented and may lead to excessive technicality.
Consideration
The Full Bench has decided to grant the respondent permission to be represented by a lawyer. We are satisfied that granting permission for the respondent to be represented will enable the matter to be dealt with more efficiently for the purposes of s 596(2)(a) having taken into account the complexity of the matter.
In this respect, we note that the only test the Commission must apply under s 596(2)(a) is whether granting permission “would enable the matter to be dealt with more efficiently”. In applying this test, the Commission must take into account the complexity of the matter, but it does not have to find that the matter is actually complex, nor does it have to find the matter is more complex than other matters.[2] Complexity may, of course, support a conclusion that granting permission would enable the matter to be dealt with more efficiently.
This appeal concerns a question of jurisdiction, namely, whether the appellant was dismissed for the purposes of s 386 of the Act. Whilst s 386 has been subject to considerable authority, this appeal concerns a particular issue as to whether a dismissal has occurred in circumstances where it was alleged that the employment came to an end as a result of the effluxion of time at the end of the time-limited contract. That is an issue which can give rise to some complexity.[3] The issue has been subject of a recent decision of the Federal Court of Australia which is referred to in one of the appellant’s grounds of appeal.[4] The involvement of counsel will assist the Full Bench in dealing with the appeal more efficiently in light the potential complexity of the legal issues raised.
The evidentiary material before the Commissioner was also substantial. The appeal book runs to 244 pages, mainly comprised of witness and documentary evidence. The appellant’s grounds of appeal and written submissions raise a range of factual matters, including that the Commissioner made erroneous factual findings or failed to consider aspects of the conduct of the respondent said to be disclosed by the evidence. The appellant seeks to rely on new evidence on appeal. We are also satisfied that representation by counsel will permit the matter to be dealt with more efficiently in light of the extent and apparent complexity of the evidentiary material and the nature of the submissions to be advanced in the appeal directed at factual matters.
For those reasons, we are satisfied the Commission is able to grant permission for the respondent to be represented as a result of the requirement in s 596(2)(a) being met. It is necessary then to consider whether we should exercise our discretion to grant permission. This requires consideration of all circumstances relevant to the parties and the matter being heard. In particular, it is necessary to consider the appellant’s submission that granting permission for the respondent to be represented would produce an imbalance between the parties to the proceedings and compromise fairness and accessibility.
We are conscious of the need to ensure fairness to both parties in the conduct of the appeal proceedings and have taken that matter into account. We are confident that the Full Bench will have no difficulty in ensuring a fair hearing is conducted. The presence of counsel, even if only for one party, has the potential to assist in ensuring that a fair hearing occurs. The presence of responsible counsel should assist in ensuring that any available arguments are appropriately identified and explored. We also note that permission was granted to the respondent to be represented by a lawyer in the proceedings at first instance. There is nothing before us to suggest that the granting of permission for legal representation at first instance caused unfairness to the appellant.
Having considered all of the circumstances, we are satisfied it is appropriate to exercise our discretion to grant permission for the respondent to be represented by a lawyer. Accordingly, we grant permission for the respondent to be represented in relation to the appeal.
VICE PRESIDENT
[1] Warrell v Walton [2013] FCA 291; (2013) 233 IR 335 at [24] (Flick J); Grabovsky v United Protestant Association of NSW Ltd (t/as UPA)[2018] FWCFB 4362 at [35]-[36].
[2] Artery v G Case & H Case (t/as Gavin Case Marine Services) [2021] FWC 4130 at [19]; Nightingale v Woolworths Group Ltd (t/as Woolworths Group)[2022] FWC 1733 at [4].
[3] See, for example, Khayam v Navitas English Pty Ltd (t/as Navitas English)[2017] FWCFB 5162; (2017) 273 IR 44.
[4] Alouani-Roby v National Rugby League Ltd [2024] FCA 12; (2024) 328 IR 226.
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