Ms Susan Kutty v Coast2Bay Housing Group Ltd

[2014] FWC 3147

[2014] FWC 3147

FAIR WORK COMMISSION

DECISION

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

Ms Susan Kutty
v
Coast2Bay Housing Group Ltd
(U2013/17493)

COMMISSIONER CAMBRIDGE BRISBANE, 13 MAY 2014

Termination of employment - representation by lawyers and paid agents.

[1] This Decision involves an application for unfair dismissal remedy made pursuant to section 394 of the Fair Work Act 2009 (the Act). The application was made by Susan Elizabeth Kutty (the applicant). The respondent employer is Coast2Bay Housing Group Ltd (the employer).

[2] This Decision is confined to the discrete question as to whether the Fair Work Commission (the Commission) should grant permission for the employer to be represented by a lawyer or paid agent.

[3] The application was filed on 18 December 2013, and the employer filed a response on 22 January 2014. The matter was not the subject of any conciliation prior to today because the employer raised a jurisdictional objection to the application which they wish to have dealt with before any conciliation occurred. Email advice dated 29 January 2014, from the employer’s Chief Executive Officer, Mr Morrie Evans, confirmed that the employer did not wish to participate in conciliation which had been listed for 18 February 2014.

[4] On 17 March 2014, Devine Legal, lawyers, advised the Commission that they acted for the employer. However, there does not appear to have been a Notice of Representative Commencing to Act filed on behalf of the employer.

[5] On 7 April 2014, the applicant formally raised objection to the employer being represented by a lawyer. This objection was primarily advanced on what I perceive to be a proposition that the Commission should refuse permission for the employer to be represented by a lawyer, because to permit a lawyer to represent the employer would allegedly disadvantage the applicant.

[6] The application indicated that the applicant is represented by her partner.

[7] On 5 May 2014, lawyers acting for the employer, Devine Legal, provided written submissions in support of permission being granted for it to represent the employer.

[8] The Commission sought the agreement of the Parties to have the question of permission for representation to be determined upon the filed written material. The applicant did not agree to this proposition and requested that the question of permission for the employer to be represented involve a Hearing. A Hearing to deal with permission for the employer to be represented could only occur for practical reasons, at the commencement of the scheduled Hearing of the jurisdictional objection and the substantive matter, which has been scheduled for today 13 May 2014.

[9] Shortly after the Hearing commenced it was agreed that the proceedings would be adjourned to permit a conciliation of the application to occur which was, unfortunately, unsuccessful. The Hearing recommenced and Mr G J Barr counsel, who appeared for the employer, made submissions in elaboration of the material filed on behalf of the employer seeking that permission be granted for lawyers to represent the employer. The applicant has been represented by her partner, Mr M Goulter, who is neither a lawyer nor paid agent. Mr Goulter made submissions opposing the granting of permission for the employer to be represented by a lawyer. I have carefully examined and considered the respective written and verbal submissions of the parties as the basis for this Decision.

Consideration

[10] The question of representation in proceedings before the Commission is governed by section 596 of the Act which is in the following terms:

“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.”

[11] It should be noted that these provisions represent a more stringent requirement for the granting of permission than existed under the predecessor provisions of the Workplace Relations Act 1996. There have been a number of Decisions of Fair Work Australia (FWA) and more recently, the Commission, which have recognised the legislative intention to broadly restrict and limit the basis upon which permission would be granted for legal (and paid agent) representation in proceedings before either FWA or the Commission, as compared with the Australian Industrial Relations Commission. In this respect I refer in particular, to the Decision of Harrison C in Rodney James Rogers v Hunter Valley Earthmoving Company Pty Ltd [2009] FWA 572, and the Decision of Lewin C in Chris Lekos v Zoological Parks and Gardens Board[2011] FWA 1520.

[12] Further, the legislative intention underpinning section 596 of the Act has been the subject of Judicial Review in the (incorrectly named) Judgment of Warrell v Walton 1 (Warrell) and I refer in particular to paragraph 25 of that Judgment.

[13] Upon examination of subsection 596 (2), there appears to be three criteria which separately or in combination, provide basis upon which the Commission can grant permission for a lawyer or paid agent to represent a party in proceedings such as the Hearing of a claim for unfair dismissal. The three criteria which can be identified in paragraphs (a), (b) and (c) of subsection 596 (2), can be paraphrased as: (a) complexity/efficiency; (b) inability; and (c) fairness.

[14] In this case the employer submitted that the criteria involving complexity/efficiency and inability as contained in subsections 596(2)(a) and 596(2)(b) of the Act were satisfied in a manner which provided proper basis to grant permission for it to be represented by a lawyer.

Complexity/Efficiency - Subsection 596 (2) (a)

[15] The employer submitted that the matter involved sufficient complexity such that its determination would be assisted by legal representatives. The complexity was asserted to arise from the jurisdictional objections raised by the employer. Further complexity was said to arise from an issue which involved any redundancy circumstance which may be found to have existed in respect to the changes to the applicant’s employment which prompted her resignation.

[16] In respect of the issue of complexity, the circumstances that surround the jurisdictional objection raised by the employer, namely that the applicant resigned freely and was not therefore a dismissed employee, is a matter which routinely requires determination in unfair dismissal proceedings. Similarly, the Commission is regularly required to examine and determine contested questions involving alleged redundancy.

[17] On balance, I am not convinced that the matter is of sufficient complexity that it would be dealt with more efficiently with the assistance of legal representatives.

Inability - Subsection 596 (2) (b)

[18] The employer advanced an argument that it was unable to represent itself effectively without a lawyer. The alleged inability was said to primarily arise from the inexperience in industrial relations advocacy of those officers of the employer who would have to conduct the matter if representatives were not permitted.

[19] The inexperience factor which is raised by the employer is equally applicable to the applicant and her partner.

[20] Upon examination, the employer’s submissions represented a reflection of desirability for legal representation rather than any inability to adequately represent itself. Consequently, I do not believe that the employer would be unable to represent itself effectively without a lawyer.

Fairness - Subsection 596 (2) (c)

[21] In this instance the applicant made submissions which raised the question of fairness. The issue of fairness between the person and other persons in the matter has some significance. The applicant has submitted that it would be a disadvantage to her if the Commission was to permit the employer to be represented by a lawyer.

[22] Importantly, if permission for legal representation for the employer was granted, something of an imbalance would emerge whereby it would be represented by a lawyer while the applicant would be represented by her inexperienced partner. The resultant imbalance would create great potential for the absence of a fair and just Hearing as was identified by the Federal Court Judgment in the Warrell case.

[23] In these circumstances, applying the reasoning contained in the Judgment in Warrell, I consider that unfairness would be created by the granting of the permission for legal representation. The resultant imbalance created by the more advantageous representation of the employer against the inexperienced representation of the applicant should be avoided.

[24] Therefore, in this instance, the fairness criterion has operated strongly against granting permission for the employer to be represented by a lawyer.

[25] In view of the conclusions that I have reached in respect of each of the relevant aspects of subsection 596(2) of the Act, the permission sought by the employer to be represented by a lawyer is refused.

COMMISSIONER

Appearances:

Mr M Goulter, on behalf of the applicant;

Mr G J Barr, counsel, together with Mr M Devine, solicitor, on behalf of the employer.

Hearing details:

2014.

Brisbane:

May, 13.

 1 Warrell v Walton [2013] FCA 291.

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