Ms Tara Cunningham v Downer EDI Mining Pty Limited

[2014] FWC 5449

[2014] FWC 5449

FAIR WORK COMMISSION

DECISION

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

Ms Tara Cunningham
v
Downer EDI Mining Pty Limited
(U2014/1457)

COMMISSIONER CAMBRIDGE SYDNEY, 11 AUGUST 2014

Termination of employment - representation by lawyers and paid agents.

[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 Tara Leah Cunningham (the applicant). The respondent employer is Downer EDI Mining Pty 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 lawyers or paid agents.

[3] The application was filed on 28 April 2014, and the applicant is represented by the Construction, Forestry, Mining & Energy Union (CFMEU). The employer filed a response dated 20 May 2014. The matter was the subject of unsuccessful conciliation held on 12 June 2014.

[4] On 2 July 2014, FCB Workplace Law, lawyers, filed a Notice of representative commencing to act on behalf of the employer. The matter was the subject of a Directions proceeding held on 2 July 2014. At the Directions, the CFMEU on behalf of the applicant, formerly raised objection to the employer being represented by a lawyer.

[5] At the proceedings held on 2 July 2014, the Commission made Directions in respect to both the substantive Hearing of the application and the question of permission for the employer to be represented by lawyers or paid agents (the representation question). In accordance with these Directions, the Parties have filed documentary material upon which the Commission has been required to determine the representation question. The provision of documentary material on the representation question culminated with employer filing and serving material in reply on 6 August 2014.

[6] I have carefully examined and considered the documentary material including the respective submissions of the Parties as the basis for this Decision.

Consideration

[7] 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.”

[8] 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.

[9] Further, the legislative intention underpinning s.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.

[10] Upon examination of subsection 596 (2) of the Act, there appears to be three factors 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 factors which can be identified in paragraphs (a), (b) and (c) of subsection 596 (2), can be paraphrased as: (a) complexity/efficiency; (b) inability/effectively; and (c) fairness.

[11] In this case the employer has submitted that all of the factors involving complexity/efficiency, inability/effectively, and fairness contained in subsection 596(2) of the Act were satisfied in a manner which provided basis to grant permission for it to be represented by lawyers.

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

[12] 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 nature of the circumstances surrounding the dismissal of the applicant.

[13] In particular, detailed expert medical evidence was to be provided in connection with the basis for the dismissal of the applicant, which involved the detection of the presence of a prohibited drug in a urine sample obtained as part of the employer’s random workplace drug testing regime. The employer submitted that the Commission would be assisted and the proceedings would be more efficient, if Junior Counsel was involved with adducing evidence from a toxicology expert, (and others), which was likely to be detailed and have a level of complexity.

[14] Alternatively, the CFMEU on behalf of the applicant, rejected the complexity attributed to the matter by those representing the employer. The CFMEU submitted that a challenge to a dismissal based upon a failure to pass a workplace drug test, was a matter routinely dealt with by the Commission. The CFMEU submitted that the examination of evidence connected with workplace drug testing did not require legal representation to be properly and efficiently dealt with during unfair dismissal proceedings.

[15] In respect of the issue of complexity, the circumstances that surround the basis for the dismissal of the applicant are not particularly unusual. Although evidence in the form of expert toxicology material might appear, and in some cases actually be, detailed and complex, the subject matter can be carefully and thoroughly tested and properly understood without resort to legal processes. The nature of the material under examination involves questions, concepts and factual disputes which regularly require contemplation, analysis and determination in unfair dismissal proceedings.

[16] 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/Effectively - Subsection 596 (2) (b)

[17] 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 requirement that the particular person who would otherwise advocate the case for the employer, Mr Goos, did not hold experience with dealing with expert evidence in a contested hearing. Further, it was suggested that it would be unfair for Mr Goos to have to present expert evidence which had been obtained by legal representatives.

[18] The CFMEU strongly rejected that the employer was unable to represent itself effectively. The submissions of the CFMEU stressed the size of the employer and the experience of the “Industrial Relations team” that it had at its disposal. The CFMEU noted that Mr Goos was a tertiary qualified and experienced advocate who had competently represented the employer in other Commission proceedings.

[19] Upon examination, the employer’s submissions represented a reflection of desirability for legal representation rather than any inability to effectively 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)

[20] In this instance both Parties have made submissions which have stressed the question of fairness. The issue of fairness between the person and other persons in the matter has some significance. The employer submitted that unfairness arose if it were denied an opportunity to be represented by lawyers. The CFMEU has submitted that, as the applicant was not represented by a lawyer, it would be unfair to permit the employer to be represented by a lawyer.

[21] If permission for legal representation for the employer was granted, something of an imbalance would emerge whereby it would be represented by lawyers instructing Junior Counsel, while the applicant would be represented by a Union advocate who was not legally trained. This imbalance would not be as profound as that involving circumstances where one of the Parties was unrepresented and the other representative was a lawyer. However, in this instance, particularly given the size of the employer, the resultant imbalance would at least give the appearance of disproportionate representation on one side.

[22] One side would have representation from experienced “HR” managers together with lawyers, while the other side had a Union advocate, albeit Mr Endacott, who is an experienced and competent practitioner. Consequently, there would be in appearance at least, significant potential for the absence of a fair and just Hearing as was identified by the Federal Court Judgment in the Warrell case.

[23] Importantly, as was recognised by his Honour in the Warrell Judgement; “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.” 2

[24] In the present circumstances, applying the reasoning contained in the Judgment in the Warrell case, I consider that unfairness and unnecessary formality would be created by the granting of the permission for legal representation. The resultant imbalance created by the appearance of more advantageous representation of the employer against the applicant should be avoided, particularly in circumstances where complexity has not been established. Therefore the fairness criterion would, in this instance, operate against the granting of permission.

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

COMMISSIONER

Final written submissions:

2014.

July, 25.

August, 6.

 1 Warrell v Walton [2013] FCA 291.

 2   Ibid @ paragraph 25.

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