Nadeem v Serco Australia Pty Limited

[2016] FWC 2237

[2016] FWC 2237

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Irfan Nadeem

(U2016/4452)

Robert Chukwu-Ike

(U2016/4453)

Gagandeep Singh Sidhu

(U2016/4454)

v

Serco Australia Pty Limited

SENIOR DEPUTY PRESIDENT

ADELAIDE, 8 APRIL 2016

O’CALLAGHAN

Permission to be represented by a ‘lawyer or paid agent’ pursuant to s.596 of the Fair Work

Act 2009.

[1]        Mr Nadeem, Mr Chuwu-Ike and Mr Sidhu have lodged applications pursuant to s.394

of the Fair Work Act 2009 (the FW Act) with respect to the termination of their employment

with Serco Australia Pty Ltd (Serco). These applications are listed for a hearing on 3 and 4

May 2016. This decision deals specifically with the issue of representation.

[2]        In directions issued on 4 April 2016 I advised:

“[5] Mr Brown, of counsel has foreshadowed a request for a grant of permission to

represent Serco. The FAIR WORK COMMISSION DIRECTS Mr Brown to provide to

the Commission and to the applicants, by close of business 8 April 2016, a brief

written submission setting out the basis upon which that permission is requested. In the

event that the applicants oppose a grant of permission, the Fair Work Commission

directs them to provide to the Commission and to Mr Brown, by close of business 15

April 2016, a brief written submission setting out the basis for that objection. To assist

the parties I have attached a copy of s.596(2) of the Fair Work Act 2009 (the FW Act)

which deals with the issue of permission.”

[3]        I have subsequently received submissions in support of a grant of representation from

Mr Brown, of counsel and a submission in response from Mr Nadeem, Mr Chuwu-Ike and

Mr Sidhu. In considering this issue I have taken into account both the application and the

Employer’s response to that application (the Form F3).
[2016] FWC 2237

[4] Section 596(2) states:

“596 Representation by lawyers and paid agents

….

(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.”

[5]        Mr Brown asserts that permission for representation should be granted pursuant to

s.596(2)(a) because the matter will involve the determination of technical legal issues and the

facts in dispute between the parties. Mr Brown asserts that, to the extent that the three

applicants wish to have their unfair dismissal applications heard concurrently and may seek to

call other witnesses, there will be extensive material which will need to be the subject of cross

examination and analysis. Mr Brown asserts that his firm had been involved in the matters

from the commencement of the proceedings and that knowledge of relevant case law would

facilitate the efficient conduct of the matter. Further, that the relevance of a film of the

incident that led to the terminations of employment will require extensive cross examination.

Mr Brown asserts that, having regard to the anticipated complexity of the matter, it would be

more efficient for Serco to be represented by a solicitor.

[6]        In terms of s.596(2)(b) Mr Brown submitted that it would be unfair not to allow Serco

to be represented by a solicitor as its Employee Relations Specialist, Mr Horacek would be

unable to represent the Serco interest sufficiently. In this respect, Mr Brown advised that

Mr Horacek was not legally qualified and that the facts and circumstances of these

applications required a person with legal qualifications who was familiar with the processes of

the Fair Work Commission.

[7]        In terms of s.596(2)(c) Mr Brown noted that the applicants were originally represented

but had apparently elected not to maintain that representation.

[2016] FWC 2237

[8]        Mr Brown submitted that a refusal of the representation request would have the

potential to manifest an injustice to Serco and that effective representation through a solicitor

should be differentiated from adequate or satisfactory representation.

[9]        In response, Mr Nadeem, Mr Chuwu-Ike and Mr Sidhu asked that I refuse a grant of

permission as Serco is a large international organisation with significant resources and

knowledge such that it could deal with this matter efficiently. Mr Nadeem, Mr Chuwu-Ike and

Mr Sidhu indicated that they now intended to only rely on a limited number of witnesses and

evidence. The applicants argued that as they were all from a non-English speaking

background and had no legal qualifications, a grant of permission on this basis would

represent a manifest injustice. Furthermore, they indicated that the terminology used by

Mr Brown in the conciliation and directions conferences had confused them. Mr Nadeem,

Mr Chuwu-Ike and Mr Sidhu asserted that the matter was not so complex that it required legal

representation.

Findings

[10]      I have considered the extent to which a grant of representation should be issued on the

basis that it would enable the matter to be dealt with more efficiently, because of its

complexity. I am not satisfied that this is the case. The material before me does not establish a

significant level of complexity other than determination of this issue on the facts.

[11]      In terms of the second limb of Mr Brown’s submissions relative to Serco’s asserted

incapacity to represent itself effectively, I am not satisfied that Serco is unable to represent

itself effectively, given it has human resource management specialists.

[12]      I am not satisfied that issues of fairness pursuant to s596(2)(c) applies so as to favour a

grant of permission in this instance.

[13]      For the reasons set out in this decision, I am not prepared to grant permission for

representation of Serco by a lawyer pursuant to s.596(2).

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