Ms Rachel Stanley v Downer EDI Mining Pty Ltd

[2019] FWC 2442

[2019] FWC 2442

FAIR WORK COMMISSION

DECISION

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

Ms Rachel Stanley
v
Downer EDI Mining Pty Ltd
(U2019/870)

COMMISSIONER HUNT BRISBANE, 10 APRIL 2019

Application for an unfair dismissal remedy – legal representation

[1] This matter concerns an application made by Ms Rachel Stanley for permission to be represented by a lawyer or paid agent at an unfair dismissal hearing.

[2] Ms Stanley’s application is made pursuant to s.596 of the Fair Work Act 2009 (the Act). Downer EDI Mining Pty Ltd (Downer) is the respondent in the proceedings and opposes the application made by Ms Stanley for permission to be represented by a consultant or lawyer employed by Supportah Ops Pty Ltd trading as Industrial Relations Claims.

[3] The parties were directed to file submissions as to whether leave for legal representation should be granted by the Fair Work Commission (the Commission).

[4] 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.”

Ms Stanley’s submissions

s.596(2)(a)

[5] Relevant to the consideration required in s.596(2)(a), Ms Stanley submitted that the matter is of sufficient complexity that representation is appropriate having regard for:

(a) The technical application of legislation with allegations that she has contravened the Coal Mining Safety and Health Act 1999 (Qld); and

(b) The application of legislation and case law to the matters of dismissal as well as matters that are likely to be raised in relation to workplace health and safety.

[6] It was submitted that the matter is not a relatively simple factual contest, 1 but one in which matters of interpretation and application of legislation and case law will inevitably arise. It was further submitted that the Commission is required to have regard to considerations of efficiency and fairness, rather than merely the convenience and preference of the parties.2

[7] Ms Stanley submitted that in the circumstance where the respondent has far more experience than her, all subject matter of the dispute could be dealt with more efficiently with the assistance of representation.

s.596(2)(b)

[8] Relevant to the consideration required in s.596(2)(b), Ms Stanley submitted that she lacks a legal background of any nature and lacks the knowledge and skills necessary to identify the relevant legislation and case law to apply them to the facts of her case in a manner which effectively puts her case to the Commission. Further, she is unlikely to be able to advocate for herself competently as it relates to examination-in-chief and particularly cross-examination, together with opening and closing addresses.

s.596(2)(c)

[9] Relevant to the consideration required in s.596(2)(c), Ms Stanley submitted that she would be prejudiced noting that she is a lay person, and the respondent is a large multinational company with some 56,000 employees and commands greater resources than her.

[10] The respondent has indicated that it will be represented by either Ms Chelsea Attreed, Industrial Relations Advisor, or Mr Jarrett Goos, Group Employee Relations Manager. The submissions made by Ms Stanley detail a work history of each, obtained by Ms Stanley through LinkedIn.

[11] Ms Attreed, whilst not an in-house solicitor is said to be completing a Bachelor of Laws on a part-time basis with a set completion date of 2020. Further, she has experience in workplace and industrial relations roles and was a research clerk in a law firm.

[12] Mr Goos has held senior Employee Relations roles for a reasonable number of years.

[13] Ms Stanley submitted that in respect of s.596(2)(c) she would be prejudiced at hearing should she not be represented, having regard for the respondent’s size, and its ability to instruct solicitors and counsel with ‘greater financial ease’, and at a severe detriment when compared with the ability of Ms Attreed or Mr Goos to represent the respondent.

Downer’s submissions

s.596(2)(a)

[14] Relevant to the consideration required in s.596(2)(a), Downer submitted that all employees involved in coal mining are trained and assessed with regards to their responsibilities and obligations under the Coal Mining Safety and Health Act 1999 (Qld). Ms Stanley was required to report an incident that she witnessed in the workplace. It is submitted that it is not necessary for a lawyer to understand the various documents and policies of the respondent, or to understand the simple requirement to report an incident such as that witnessed by Ms Stanley.

[15] It was submitted that any reference by Downer to the Coal Mining Safety and Health Act 1999 (Qld) does not add complexity to the unfair dismissal matter. Further, the matter does not involve complex factual and legal considerations. 3

s.596(2)(b)

[16] Relevant to the consideration required in s.596(2)(b), the respondent submitted that Ms Stanley has not demonstrated that she is unable to represent herself effectively, nor has she adduced evidence demonstrating that she is from a non-English speaking background or has difficulty reading or writing.

s.596(2)(c)

[17] Relevant to the consideration required in s.596(2)(c), the respondent submitted that Mr Goos is very unlikely to be available to assist with preparation of the material required for the hearing, and at the hearing due to prior work commitments.

[18] While Ms Attreed does have some experience in employment relations, she holds no formal legal qualifications, is not an experienced advocate and has never formally appeared before the Commission in arbitrated matters.

[19] It is submitted that it would be unfair and unjust for Ms Stanley to be represented by an experienced employment relations lawyer when the respondent is not, and has no intention of engaging legal representation. 4

Consideration

[20] The decision of Flick J in Warrell v Walton⁵ addresses the obligation to strike a balance between the objective of an informal determination process with equity and efficiency considerations depending on the circumstances of a particular matter:

“[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”.

[25] 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 (Cth)...”

[21] The decision to allow a party to be represented in a matter is discretionary; it 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.⁶

[22] Regarding the consideration in s.596(2)(a), I am not satisfied that the matter is sufficiently complex, or that there is a complex factual contest between the parties. Any assistance required to determine obligations pursuant to the Coal Mining Safety and Health Act 1999 (Qld) or any other health and safety legislationcan be done with the assistance of legal advice in advance of the hearing. If leave is refused, Ms Stanley can be prepared by holding discussions with her representative in advance. I do not anticipate that there will be significant evidence and submissions put at hearing relevant to the Coal Mining Safety and Health Act 1999 (Qld).

[23] Regarding the consideration in s.596(2)(b), any and all necessary assistance can be provided to Ms Stanley by her representative prior to the hearing, including prepared opening and closing addresses and draft questions for cross-examination, if she so wishes. It is not necessary for submissions to be read to the Commission by a lawyer or paid agent to have greater impact or force than when being read by an applicant. I am not satisfied that Ms Stanley is unable to represent herself effectively.

[24] Regarding the consideration in s.596(2)(c), having regard to Mr Goos’ experience in senior roles, if Mr Goos appeared at hearing, I would be inclined to grant leave for Ms Stanley to be represented by a lawyer. In that circumstance I consider that there would be some disadvantage to Ms Stanley in having a very experienced employee relations professional appear for the respondent where she was denied representation.

[25] In the present scenario, however, where Ms Attreed is to be the advocate for the respondent, given her minimal experience before the Commission, including never having appeared before the Commission in arbitrated matters, I find that Ms Stanley will not be at any disadvantage. I do not accept that it would be unfair not to allow Ms Stanley to be represented when Ms Attreed appears for the respondent.

[26] In the event that circumstances for the respondent change, and Mr Goos is available to represent the respondent at hearing, the respondent must immediately notify my chambers and I may further reconsider any request for Ms Stanley to be represented at hearing.

[27] For the reasons set out above, I decline to exercise my discretion under s.596(2) of the Act to grant permission for Ms Stanley to be represented by a lawyer. The Commission will, of course, afford to Ms Stanley and to the respondent all necessary and appropriate assistance at the hearing to ensure procedural fairness to the parties. If at any time one of the parties has questions relevant to issues or processes before the Commission, this will be appropriately explained.

[28] Further, the parties will be invited at the commencement of the hearing to address the Commission relevant to whether the hearing should be conducted as a determinative conference, or a hearing. The views of the parties will be considered on this issue.

[29] The Commission will hear from the parties concluding the evidentiary case before the Commission whether oral or written closing submissions are preferred. In the case where written closing submissions are made, Ms Stanley will be able to avail herself of assistance of her representative before filing of written closing submissions.

COMMISSIONER

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 1   Rodney James Hodgers v Hunter ValleyEarth Moving Company Pty Ltd[2009] FWA 572.

 2   Explanatory Memorandum to Fair Work Bill 2008 at [2296].

 3   Rodgers v Hunter Valley Earthmoving Company Pty Ltd [2009] FWA 572 [14].

 4   Warrell v Walton [2013] FCA 291.

⁵ [2013] FCA 291.

⁶ Rodgers v Hunter Valley Earthmoving Company Pty Ltd[2009] FWA 572.