Rebecca Hall v Sherkaz Pty Ltd T/A Country Acres Caravan Park

[2018] FWC 5793

[2018] FWC 5793

FAIR WORK COMMISSION

DECISION

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

Rebecca Hall
v
Sherkaz Pty Ltd T/A Country Acres Caravan Park
(U2018/5109)

COMMISSIONER CAMBRIDGE SYDNEY, 19 SEPTEMBER 2018

Termination of employment - representation by lawyers and paid agents.

[1] This Decision involves an application for unfair dismissal remedy which has been made under section 394 of the Fair Work Act 2009 (the Act). The application was made by Rebecca Hall (the applicant). The respondent employer has been identified to be Sherkaz Pty Ltd T/A Country Acres Caravan Park (the employer).

[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 application was filed on 16 May 2018, and it indicated that the date of the applicant’s dismissal was 26 April 2018. Consequently the application was made within the 21 day time limit prescribed by subsection 394 (2) (a) of the Act. The employer filed a response to the application dated 30 May 2018, which indicated that the employer was represented by Hozack Clisdell Lawyers.

[4] The filed documentation indicates that conciliation of the matter occurred on 14 June 2018. Apparently agreement had been reached to settle the matter, but subsequently the applicant indicated that she did not wish to “settle on the agreement made by myself and sherkaz pty Ltd”. The matter has been scheduled for Hearing/Conference on 25 September 2018, at Newcastle.

[5] On 27 August 2018, the Commission received an outline of submissions document from the solicitor for the employer which provided material in support of the representation question and urged that permission be granted for the employer to be represented by a legal practitioner. On 13 September 2018, the applicant provided formal advice that she objected to the employer being represented by lawyers or paid agents.

[6] The solicitor for the employer has been provided with a further opportunity to respond to the confirmed objection of the applicant in respect to the representation question. The representation question has been determined upon the documentary material which has been filed by the Parties.

Consideration

[7] The question of representation in proceedings before the Commission is governed by s. 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] 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.

[9] It is also relevant to note that the operation of s. 596 of the Act has been the subject of more recent examination by a Full Bench Decision in the case of Fitzgerald v Woolworths Limited  2 (Fitzgerald). The Full Bench Decision in Fitzgerald has established, inter alia, particular practical consequences that have application in circumstances where permission for a Party to be represented by lawyers or paid agents is refused, or where lawyers or paid agents undertake a representative role without first obtaining the permission of the Commission.

[10] Subsection 596 (2) of the Act includes three factors which separately or in combination, provide the 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 solicitor for the employer has submitted that there was sound basis for the Commission to grant permission for the employer to be represented by lawyers. It was submitted, inter alia, that witness evidence would be called from the employer’s Managing Director who would have to be both witness and advocate if permission was not granted for the employer to be represented by lawyers or paid agents. Further, it was submitted that the Commission would be required to make an assessment of witness credibility and the law, and would be assisted by reasoned legal argument from a qualified legal practitioner in circumstances where the applicant was self-represented. It was also submitted that the employer would be unable to represent itself given that it did not employ anyone with a background in advocacy.

[12] Conversely, the applicant has stated strong objection to the employer being granted permission for legal representation. The applicant has asserted that the prospects for settlement of the matter would not be assisted by the presence of lawyers. The applicant stated that as she was self-represented she felt that it should be a matter that was dealt with by way of the involvement of herself and the employer’s Managing Director.

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

[13] In this instance, the solicitor for the employer has submitted that the Commission would be assisted by the presentation of reasoned and relevant submissions and thus the efficiency of the Hearing of the matter would be enhanced if permission was granted for the employer to be represented by a qualified legal practitioner.

[14] Upon examination of the material which has been filed, and a consideration of any contests that may arise from it, it is clear that the matter does not involve a level of complexity beyond that which would ordinarily be found in a routine unfair dismissal matter. Although the Commission may be assisted by the involvement of a qualified legal practitioner, the applicant has suggested that the presence of lawyers may not assist in any prospects for settlement. The assistance that may be provided to the Commission and any resulting degree of efficiency that may follow, is a matter that must be evaluated against any perceived imbalance that may be created for the unrepresented Party.

Inability/Effectively - Subsection 596 (2) (b)

[15] The solicitor for the employer submitted that the employer would be unable to represent itself effectively without the assistance of lawyers or paid agents. It was submitted that as a small business, without any person with previous experience in advocacy, the employer was unable to represent itself effectively. In particular, it was submitted that the employer’s Managing Director would have to be both witness and advocate if permission was refused.

[16] Clearly, the applicant has had no previous experience in advocacy or the conduct of matters before the Commission. Further, the applicant would also have to become both a witness and advocate during the Hearing. In circumstances where both an applicant and respondent employer were essentially unskilled and inexperienced, there is no basis to conclude that any particular person who may represent either Party would not be capable of making a “striking impression” or be “impressive” or be “powerful in effect”.

Fairness - Subsection 596 (2) (c)

[17] The issue of fairness between the Parties is a matter of recognised significance. In this instance the applicant has made submissions which have raised the question of fairness, and by implication, she has suggested that there would be an imbalance created if permission was granted for the employer to be represented by lawyers or paid agents.

[18] In this case, having regard for the respective representational positions of the Parties, there would appear to be little unfairness created if the employer was required to utilise its own staff. Although the employer is a small business without any dedicated personnel who deal with employment related matters, the matter has been acknowledged to be reasonably straightforward, and the applicant is similarly inexperienced.

[19] The Act envisages that Parties appearing before the Commission would not be represented by lawyers or paid agents. It may be said that the “default position” is that lawyers and paid agents are excluded from representation of Parties in proceedings before the Commission. The “default position” which excludes lawyers and paid agents, has been established in the interests of informality as was recognised in the following extract from the Warrell Judgment; “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.” 3

[20] In the present circumstances, applying in particular, the reasoning contained in the Judgment in the Warrell case, I consider that unnecessary formality would be created by the granting of permission for legal representation. There would be no imbalance created by a circumstance where an applicant who was self-represented, was opposed by a member of the staff of the small business that formerly employed her. A configuration of this nature would be entirely consistent with the legislative regime, particularly in circumstances where complexity has not been established.

[21] 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

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 1 Warrell v Walton [2013] FCA 291.

 2   Stephen Fitzgerald v Woolworths Limited [2017] FWCFB 2797.

 3 Warrell v Walton [2013] FCA 291 @ paragraph 25.