Nadeem Ahmed v HSBC Bank Australia Limited
[2017] FWC 334
•19 JANUARY 2017
| [2017] FWC 334 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Nadeem Ahmed
v
HSBC Bank Australia Limited
(U2016/11176)
Rhys James
v
HSBC Bank Australia Limited
(U2016/11210)
COMMISSIONER CAMBRIDGE | SYDNEY, 19 JANUARY 2017 |
Applications for unfair dismissal remedy - representation by lawyers and paid agents.
[1] This Decision involves two related applications for unfair dismissal remedy made pursuant to s. 394 of the Fair Work Act 2009 (the Act). The applications were respectively made by Nadeem Ahmed and Rhys James (collectively, the applicants). The respondent employer is the HSBC Bank Australia Limited (the employer or HSBC).
[2] This Decision is made in respect 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 (the representation question).
[3] The applications were filed on 8 September 2016, and the applicants are not represented. The employer filed responses to the applications dated 14 September 2016, and on 28 October 2016, Allens lawyers filed a notice of representative commencing to act on behalf of the employer.
[4] The filed material indicates that conciliation of the applications occurred on 18 October 2016. The matters have been scheduled for concurrent Hearing/Conference on 1 and 2 February 2017 in Sydney.
[5] The applicants have formerly raised objection to the employer being represented by lawyers or paid agents. On 8 November 2016, the applicants sent a written communication to the Commission which set out the basis for the applicants’ opposition to the employer being granted permission to be represented by lawyers or paid agents. On 11 November 2016, the employer was provided with a copy of this communication.
[6] Allens lawyers provided written submissions dated 13 January 2017, in response to the applicants’ objections raised in respect of the representation question, and in support of permission being granted for the employer to be represented by lawyers or paid agents. The representation question has been determined upon the documentary material which has been filed.
[7] I have examined and considered the filed documentary material including, in particular, the written submissions made by Allens lawyers on the representation question as the basis for this Decision.
Consideration
[8] 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.”
[9] The legislative intentions underpinning s. 596 of the Act have been the subject of various Decisions of the Commission and of Fair Work Australia. Further, the approach to consideration of the representation question has been examined by way of Judicial Review in the (incorrectly named) Judgment of Warrell v Walton 1 (Warrell) and it is relevant to note, in particular, paragraph 25 of that Judgment.
[10] Subsection 596 (2) of the Act includes 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/Conference 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’s representatives have submitted that those factors found in subsections 596 (2) (a), (b) and (c) of the Act, respectively involving, complexity/efficiency, inability/effectively, and fairness, all operated to provide basis for the Commission to grant permission for the employer to be represented by lawyers. Conversely, the applicants have stated that they objected to the employer being granted permission for legal representation particularly because they were representing themselves, and that the employer was a large, well-resourced organisation. Further, the applicants asserted that the case did not involve any particular complexity. The applicants suggested that these factors operated to establish that the Commission should refuse permission for the employer to be represented by lawyers.
Complexity/Efficiency - Subsection 596 (2) (a)
[12] Allens lawyers submitted that the matters involved sufficient complexity such that their determination would be assisted by legal representatives. The complexity was asserted to arise from the substantial amounts of documentary evidence, complex factual background and a range of legal issues surrounding the applicants’ unfair dismissal claims. Further, it was submitted that the matters involved a substantial body of documentary evidence which was to involve the alleged dishonesty of the applicants, who would each be cross-examined on various factual disputes. The employer’s representatives submitted that the involvement of legal representation would assist with the cross-examination of each of the applicants so as to ensure efficiency with the Hearing.
[13] The applicants asserted that the matters were not too complex and could be argued on logic and evidence. The applicants said that the matters did not involve any contentious aspects of law.
[14] Upon examination of all of the material which has been filed, and a consideration of any contests that may arise from it, I am unable to recognise a level of complexity beyond that which would ordinarily be found in two, interrelated, unfair dismissal matters.
Inability/Effectively - Subsection 596 (2) (b)
[15] The employer’s representatives advanced an argument that the employer would be disadvantaged if it was unable to have a lawyer represent it. It was asserted that the employer did not have a suitable employee or officer who could represent it effectively before the Commission. Allens lawyers submitted that the employer’s human resources department comprised only 20 employees, and that the particular person who would otherwise advocate for the employer was no longer an employee of HSBC and was now based in New Zealand. Therefore, according to the submissions made on behalf of the employer, no other member of the HSBC human resources department would be able to devote the time needed to familiarise themselves with the complex factual circumstances surrounding the applications.
[16] It was further submitted that although the employer had a legal department comprising eight lawyers, only six were based in Sydney. Further, there was no member of the legal department who had experience in employment law and who would be available at the time of the Hearing. It was therefore asserted that there was no member of the HSBC legal department who would have the time needed to prepare the employer’s case properly, and this would prevent the employer from representing itself effectively.
[17] The applicants submitted that the employer was a big organisation with a heavily staffed and qualified HR and legal team, and that it should be able to prosecute its case with their experienced HR specialists and legal team.
[18] Upon examination of the submissions made, I am not convinced that the employer could not effectively represent itself without lawyers. I believe that given the size of the employer’s operation which includes specialist HR and legal staff, those who would represent it would be capable of making a “striking impression” or be “impressive” or be “powerful in effect.”
Fairness - Subsection 596 (2) (c)
[19] The issue of fairness between the Parties is a matter of recognised significance. In this instance, all Parties have made submissions which have addressed the question of fairness.
[20] The submissions made on behalf of the employer asserted that unfairness would arise if the employer was denied an opportunity to be represented by particular lawyers who were familiar with the matters. Allens lawyers submitted that the employer would be placed at a significant disadvantage in the preparation of its case as there was no suitable HSBC employees who could familiarise themselves with the circumstances of the matters. It was submitted that it would be grossly unfair if the employer was denied the opportunity of being represented by a solicitor of its choosing.
[21] The applicants submitted that it would be fair and equitable if HSBC was denied legal representation in circumstances where the applicants were not represented. The applicants stressed that they were unrepresented, and there would be an imbalance if the employer was permitted legal representation.
[22] In this instance, if permission for legal representation for the employer was granted there would appear to be a significant imbalance created because the applicants would be representing themselves while the employer obtained external legal representation. Particularly given the size of the employer, there would also appear to be little unfairness created if the employer was required to utilise its own staff, some of whom may be legally trained or qualified albeit without significant experience in employment law matters generally and these matters specifically.
[23] Further, in respect to the submissions made regarding the employer’s HR and/or legal team members being required to familiarise themselves with the circumstances of the matters, it should be noted that in early November last year the applicants had communicated their opposition to the employer being granted permission to be represented. There would appear to have been some considerable delay before those representing the employer sought to articulate complaint regarding a position which in itself was a manifestation of that delay.
[24] In this instance the determination of the representation question has been strongly influenced by the particular factors regarding fairness between the Parties, and the requirement for informality, 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
[25] In the present circumstances, applying in particular, the reasoning contained in the Judgement in the Warrell case, I consider that unnecessary formality would be created by the granting of permission for legal representation. Further, a manifest unfairness between the respective Parties would emerge if permission was granted and an imbalance would be created between unrepresented applicants against the employer’s external legal representatives. The resultant imbalance created by the appearance of more advantageous representation of the employer against the applicants should be avoided, particularly in circumstances where complexity has not been established. Therefore, the fairness criterion has, in this instance, operated strongly against the granting of permission.
[26] 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 lawyers or paid agents is refused.
COMMISSIONER
1 Warrell v Walton [2013] FCA 291.
2 Ibid @ paragraph 25.
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