Noor Awdol v Rasier Pacific Pty Ltd
[2023] FWC 211
•30 JANUARY 2023
| [2023] FWC 211 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Noor Awdol
v
Rasier Pacific Pty Ltd
(U2022/11409)
| COMMISSIONER BISSETT | MELBOURNE, 30 JANUARY 2023 |
Application for an unfair dismissal remedy – permission to be legally represented by a lawyer or paid agent – permission granted to respondent
Mr Noor Awdol (Applicant) has made an application in which he says that he was unfairly dismissed from his employment with Raiser Pacific Pty Ltd (Respondent) on 28 November 2022. The application was filed on 30 November 2022.
In its response to the application the Respondent raised a number of jurisdictional objections to the application, those being that the application was made outside the 21 day time period provided for in the Fair Work Act 2009 (FW Act), that the Applicant was not dismissed and that the Applicant was not an employee. Further, the Respondent sought orders that the application be dismissed pursuant to s.587 of the FW Act on the grounds that it has no reasonable prospect of success.
Background
At the time the Applicant made his application, and since then, the Commission has received close to 30 applications all in the same form naming “Uber Australia” or “Uber Australia Pty Ltd” as the purported employer. The subsequent objections of the Respondent are also in the same form although the extent to which the applications may be considered “out of time” (noting the objection that the Applicants in all cases were not employees) has varied, depending on individual circumstances. Given the similarity of the applications all are being dealt with in my chambers.
In this matter (and in all applications similar to that of the Applicant) I determined that the first matter to be dealt with would be the question of whether the application was made out of time. This would necessitate, for that purpose only, taking the Applicant to have been “dismissed” as that term is ordinarily understood (and defined in the FW Act) in relation to employment. To take this approach leaves the other aspects of the Respondent’s objection to a later time.
I have sought from the Applicant submissions and evidence as to why he says his application is filed within time taking into account the statements of the Respondent in its employer response to the unfair dismissal application.[1] I have also requested submissions and evidence from the Respondent as to why it says the application is out of time. These submissions have been filed at the time of this decision.
The Respondent seeks permission to be represented by lawyers in all aspects of proceedings including any further hearings on other jurisdictional matters, should they occur.[2] The Applicant opposes the grant of permission.
Permission to be represented
Section 596 of the FW Act states 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.”
It follows that a party can only be represented by a lawyer or paid agent if the Commission grants such permission.
It is well established that, in order to consider exercising its discretion to grant permission, the Commission must first be satisfied that one of the conditions in s.596(2)(a)-(c) is met. If a condition is met it is then a discretionary consideration as to whether permission ought be granted.
Submissions of the Respondent
The Respondent submits that, pursuant to s.596(2)(a) – which it relies on for permission – the Commission must be satisfied that the matter could be dealt with more efficiently if permission was granted and that it is not necessary that a matter have particularly complexity. In circumstances where the Commissioner is dealing with multiple applications against the Respondent all in the same vein it submits that it will be more efficient if permission is granted in this (and any other) matter.
The Respondent acknowledges that the Applicant is not represented but submits that the grant of legal representation to the Respondent will enable relevant material to be placed before the Commission and in this way the matter will be dealt with more efficiently.
Further, the Respondent submits that it seeks permission to represent the Respondent at all stages of proceedings. If the Applicant is successful at the hearing in relation to whether his application is out of time further complex jurisdictional issues must then be dealt with.
The Commission will likewise be assisted as the legal representative of the Respondent has in depth knowledge of the facts, legal issues and procedural matters such that it will assist in maintaining a focussed approach to the matter at hand.
Submissions of the Applicant
The Applicant submits that his case is not complex and it should not be “lumped as part of a cohort” under one umbrella at the request of the Respondent.
The Applicant submits that the Respondent will have a better understanding and knowledge of his particular case (than lawyers would) as it will look into the case and have a better knowledge of his history and engagement with the Respondent.
The refusal of permission to the Respondent will benefit both the Respondent and the Commission as the Respondent will be required to deal directly with the Applicant and will be better able to update and improve its communication and processes including dispute resolution so that matters such as the Applicants can be resolved quicker and without the need of the Commission.
The Applicant submits that he will be disadvantaged by the grant of permission. This, he submits, is highly unfair and unreasonable “and goes against the integrity of the Fair Work Commission processes and fairness.”
Consideration
The Respondent has raised multiple jurisdictional objections in relation to the application made by the Applicant. It appears from the employer response to the unfair dismissal application that it initially sought to have all of these matters considered by way of its application that the unfair dismissal application be dismissed on the grounds that it had no reasonable prospect of success.
While the separation of the issues (so that the question of whether the application is out of time will be dealt with first as a stand alone issue) might appear to support a finding there is no efficiency to be gained by the grant of permission at this juncture of proceedings, such an approach belies the interconnectedness of the range of issues. It also gives no weight to the value of consistency in representation of the Respondent should this matter proceed beyond the first hearing. I am also cognisant of what appears to be a standard pattern application for unfair dismissal being made by multiple people previously engaged by an “uber” entity and the potential for efficiency in representation being treated equally amongst all matters.
I have reviewed the written submissions of the parties in relation to the grant of the extension of time. In this I note that the Applicant has failed to file submissions (beyond assertion of a termination date) that address the majority of s.394 of the FW Act. The issue for the Commission to determine is not just when the dismissal took effect but all matters in s.394 of the FW Act. Given the dearth of material provided by the Applicant I do consider that the matter would be dealt with more efficiently if permission was granted to the Respondent. I note in particular that the Applicant has not engaged in any question as to the merits of his application or even a superficial view on the implications and the Respondent’s objections to the application. The Applicant has not engaged at all in his submissions on the implications of the decisions of the High Court in Personnel Contracting[3] and Jamsek[4] and the later Commission decisions where these matters have been considered.
If it is that the Applicant is aware of these cases and the influence they may have on the merits of his claim, and he does put these before the Commission, the grant of representation will assist the Respondent in responding to these.
Despite the submissions of the Applicant the hearing before the Commission is not a process that allows “Uber to deal directly with an Uber driver”. Neither are these proceedings directed to the Respondent reviewing “the dismissal processes and communication” it may have utilised. Rather, it is a hearing where the question of whether the Applicant should be granted an extension of time within which to make his application is to be determined by the Commission.
I acknowledge that the Applicant will not be represented in these proceedings. While he says (in his submissions addressing s.394 of the FW Act) he did not have the ability over the Christmas/New year period to gain representation, nothing has stopped the Applicant obtaining representation up until now. I would observe however that a purpose in granting representation will be to ensure that all of the relevant matters are put before the Commission to assist in sound decision making by the Commission. It is not designed to inhibit the Applicant’s engagement or ability to present his case to the best of his abilities. To the extent they are relevant to the matters I must determine, all submissions and evidence before me will be given due consideration.
I consider that the matter will be dealt with more efficiently if permission is granted such that I am satisfied that the requirements of s.596(2)(a) of the FW Act have been met. For the reasons set out above I am also satisfied that I should exercise my discretion and grant permission to the Respondent to be represented by a lawyer. Permission is therefore granted to the Respondent.
COMMISSIONER
[1] In addition to other matters specified in s.394 of the FW Act
[2] The Respondent has sought permission to be represented in all of the related matters before the Commission.
[3] Construction, Forestry, Maritime, Mining and Energy Union & Anor v Personnel Contracting Pty Ltd [2022] HCA 1
[4] ZG Operations Australia Pty Ltd v Jamsek [2022] HCA 2
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