Rami Alame v G4S Custodial Services Pty Ltd
[2022] FWC 256
•8 FEBRUARY 2022
| [2022] FWC 256 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Rami Alame
v
G4S Custodial Services Pty Ltd
(U2021/10260)
| COMMISSIONER WILSON | MELBOURNE, 8 FEBRUARY 2022 |
Application for an unfair dismissal remedy
An application has been made by the Applicant, Mr Rami Alame, seeking relief from an alleged unfair dismissal, which has been allocated to me for a determination on its merits.
The Respondent, G4S Custodial Services Pty Ltd, seeks to be represented in these proceedings by a lawyer and has provided short written submissions in support of its request arguing that a grant of legal representation in its favour would enable the matter to be dealt with more efficiently and that it is unable to represent itself effectively.
Mr Alame does not seek to be represented, and objects to the grant of representation in favour of the Respondent providing short submissions on the subject to be taken into account; namely on the basis that the matter lacks the required complexity and would put him at a disadvantage.
Determination of the question of representation requires consideration of s.596 of the Fair Work Act 2009 (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.
(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.
In particular, the Respondent submits that its circumstances are enlivened by subsections 596(2)(a) (efficiency, taking into account the complexity of the matter). It seeks to be represented by Will Spargo, Partner, Lander & Rogers. In this regard the Respondent submits approving Artery v G Case & H Case T/A Gavin Case Marine Services[2021] FWC 4130 that “the only test the Commission must apply under s 596(2)(a) is whether granting permission ‘would enable the matter to be dealt with more efficiently”.
Mr Alame objects to the application, submitting that in his view the matter is not complex and that if there is complexity it is introduced by the Respondent putting forward “irrelevant submissions”. Further, he submits that his own submissions are mainly to do with disputes of law.
Given the Respondent does not rely upon either of s.596(2)(b), the inability ground, and s.596(2)(c), the fairness ground, there is no need to give further consideration to those sub-sections.
The proper interpretation of s.596, was considered by Flick J of the Federal Court in Warrell v Walton[1]:
“[24] A decision to grant or refuse “permission” for a party to be represented by “a lawyer” pursuant to s 596 cannot be properly characterised as a mere procedural decision. It is a decision which may fundamentally change the dynamics and manner in which a hearing is conducted. It is apparent from the very terms of s 596 that a party “in a matter before FWA” must normally appear on his own behalf. That normal position may only be departed from where an application for permission has been made and resolved in accordance with law, namely where only one or other of the requirements imposed by s 596(2) have been taken into account and considered. The constraints imposed by s 596(2) upon the discretionary power to grant permission reinforce the legislative intent that the granting of permission is far from a mere “formal” act to be acceded to upon the mere making of a request. Even if a request for representation is made, permission may be granted “only if” one or other of the requirements in s 596(2) is satisfied. Even if one or other of those requirements is satisfied, the satisfaction of any requirement is but the condition precedent to the subsequence exercise of the discretion conferred by s 596(2): i.e., “FWA may grant permission...”. The satisfaction of any of the requirements set forth in s 596(2)(a) to (c) thus need not of itself dictate that the discretion is automatically to be exercised in favour of granting “permission”.”[2]
It is well established that in order for permission for representation to be granted under this section, the Commission must first determine if there exists a jurisdictional prerequisite to the exercise of discretion by virtue of at least one of the three conditions in s.596(2) of the Act being met. The Commission must then decide whether or not to exercise the discretion to grant permission.[3] It is only where the first step is satisfied that the second step arises, which involves a consideration as to whether in all of the circumstances the discretion should be exercised in favour of the party seeking permission.[4] The task of determining whether any of the criteria in s.596(2) is satisfied involves the making of an evaluative judgment akin to the exercise of a discretion.[5] Satisfaction of one of the s.596(2) criterions does not dictate that the discretion is automatically to be exercised in favour of granting permission.[6]
In respect of s.596(2)(a), even if legal representation would enable a matter to be dealt with more efficiently, a lack of complexity may still mean that permission is refused.[7] Sheer volume of documents or the existence of extraneous issues does not equate to complexity, with the Commission routinely being required to deal with such factors.[8] While the consideration of complexity must be treated as a matter of significance in consideration of this criterion, ultimately the issue is whether the grant of permission would enable the matter to be dealt with more efficiently.[9]
I am satisfied that the relevant complexity of this matter concerns the obligations the Respondent contends it was under and its consequential decision making in respect of Mr Alame’s employment.
Mr Alame’s submissions about the merits of his case are essentially that the Respondent had no lawful obligation to follow the directions given to it by the entity to which it contracted, The Liberty Group Consortium Pty Ltd, which in turn provides services to the County Court of Victoria. Further, and to the extent which the directions given by the Respondent rely upon policies of Court Services Victoria, those polices are either unlawful or inapplicable in respect of Mr Alame’s employment.
For its part, the Respondent submits Mr Alame, having resigned from full-time employment in July 2021, with an offer of casual employment being put to him at or around the time his full-time employment ended, is not a person protected from unfair dismissal. The Respondent contends both that this change in employment status broke his period of continuous service and that in any event he only worked two shifts after the change, both of which were in July 2021, with his employment finally ending more than three months later on 8 November 2021. In relation to the merits of its case the Respondent submits that its decision-making is consistent with its contractual obligations, putting forward that in not being vaccinated against COVID-19 Mr Alame could not perform the inherent requirements of his role as a Security Officer at the County Court.
The Applicant expects to only bring his own evidence forward, and the Respondent only proposes to bring forward its Contract Manager, Paul Haddad.
I consider that each of the contentions on the part of the Respondent is a relevant complexity, requiring consideration and determination by me on the evidence and other material. Likewise, Mr Alame’s contentions about the irrelevance of the Respondent’s submissions, as well as his own submissions are mainly to do with disputes of law, are not insignificant matters and require proper identification and classification of the issues by the Commission.
Legal representation may assist in filtering those matters needing agitation in the proceedings before me. Delivery of such efficiency though will require the Respondent to exercise restraint both in the scope of the matters it puts into oral evidence as well as the nature, scope and frequency of objections it chooses to pursue in the forthcoming proceedings. While there is clearly some uncertainty as to whether efficiency will actually be delivered by legal representation, I am satisfied that without representation the Respondent’s case in the forthcoming proceedings will likely not fulfil such aspirations of efficiency as I may hold.
As set out above, the decision to grant permission is not merely a procedural step but is a two-step process. First it must be determined if one of the requirements in s.596(2) have been met. Secondly, if the requirement has been met, it is a discretionary decision as to whether permission is granted.[10]
Having determined that the only ground enlivened by the Respondent’s application is whether a grant of legal representation would enable the matter to be dealt with more efficiently taking into account the complexity of the matter, I consider that the possibility that there will be a significantly improved handling of the proceedings because of the Respondent’s representation is a factor in favour of the discretion being exercised.
Against that possibility I need to take into account that there is the potential for an imbalance to arise in the proceedings because of the Respondent being represented by a skilled and professional advocate. In this regard Mr Alame submits that he is a self-represented applicant pitted against a large corporation with considerable resources. Having heard Mr Alame in two mention hearings conducted to date, I do not hold the view that he will be disadvantaged through a grant of permission for legal representation to the Respondent.
On balance, I consider that the matter of potential efficiency to be gained through the grant of representation outweigh the matters referred to by Mr Alame.
The Respondent is therefore granted permission to be legally represented in the forthcoming proceedings in this matter.
COMMISSIONER
Appearances:
Mr Alame for himself
Olivia Bramwell for the Respondent
Hearing details:
Mention
Melbourne (via v deo conference);
3 February 2022
[1] [2013] FCA 291.
[2] Accepted by the Full Bench of the Commission as the correct approach to s.596 of the Act in New South Wales Bar Association v McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663.
[3] Appellant v Respondents[2014] FWCFB 4297; Emily Oratis v Melbourne Business School[2014] FWCFB 3869 [5].
[4] ERGT Australia v Mr Kevin Govender[2021] FWCFB 268, [48].
[5] Asciano Services Pty Ltd v Hadfield[2015] FWCFB 2618 [19].
[6] Govender, [48].
[7] King v Patrick Projects Pty Ltd[2015] FWCFB 2679 [15].
[8] Ibid [17].
[9] Singh v Metro Trains Melbourne[2015] FWCFB 3502 [16].
[10] Warrell v Fair Work Australia [2013] FCA 291, [15].
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