Rebecca Nix v Australian Food Group Pty Ltd

[2015] FWC 3223

[2015] FWC 3223

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Rebecca Nix
v
Australian Food Group Pty Ltd
(U2015/2570)

COMMISSIONER RYAN MELBOURNE, 11 MAY 2015

Application for relief from unfair dismissal.

[1] This decision concerns an unfair dismissal application by Ms Rebecca Nix (the applicant) in relation to the termination of her employment by Australian Food Group Pty Ltd (the respondent).

[2] The solicitors for the respondent, Davies Lawyers Pty Ltd, has made application that the respondent be granted permission to be represented by Ms S. Bingham of counsel at any hearing in relation to both the jurisdictional objection and the substantive matter.

[3] Section 596 of the Fair Work Act 2009 (the Act) deals with representation, and relevantly provides 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.

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.”

[4] The respondent relies upon sections 596(2)(a), (b) and (c) of the Act in its submissions:

“Section 596(2)(a) - It would enable the matter to be dealt with more efficiently, taking into account the complexity of the matter.

5. The matter is complex and able to be dealt with more efficiently with the Respondent being represented because:

a. It involves the application of the principles of legal construction and consideration of relevant authorities to determine whether the Applicant's employment ended by way of dismissal or resignation.

b. It will be necessary for witness evidence to be called and tested in cross examination.

6. The Respondent is not a legal professional and is unfamiliar with the rules relating to legal procedure and cross examination. Legal representation will allow for a quick and informal process and would avoid unnecessary technicalities.

7. There are factual matters that are the subject of significant dispute between the parties, even in the jurisdictional application. Resolution of the factual disputes may be more efficiently dealt with if the Respondent is represented by a lawyer. See for example Flood v Aviation Ground Handling Pty Ltd [20 11] FWA30 13 at [22].

Section 596(2)(b) - It would be unfair not to allow the Respondent to be represented because the Respondent is unable to represent itself effectively

8. The Respondent is unable to effectively represent itself. The Respondent engages a legal firm to provide all legal support in relation to employment and industrial relations issues which arise in the Respondent's business. This legal firm has been retained for a number of years.

9. The Respondent also submits it is unable to represent itself effectively as it does not have a Human Resources department who is able to represent it in this matter. The Respondent is reliant on the legal firm for all matters pertaining to employment and workplace relations. Being a legal firm who practices in this particular area of law, the Respondent also submits they are aware of the Commission's procedures and will maintain the informal nature, yet assist in providing a more efficient and effective process.

Section 596(2)(c)- It would be unfair not to allow the Respondent to be represented, taking into account fairness between the Respondent and the Applicant

10. The Respondent maintains that it does not have any legal expertise. Refusing to permit legal representation could result in failure to accord procedural fairness.

11 . The Respondent, if the request were granted, would be represented by Counsel with duties of independence, frankness and integrity owed to the Commission under the Professional Conduct and Practice Rules 2005. In those circumstances, the prospect of unfairness to the Applicant is not apparent.

12. For all of these reasons, the Respondent submit that the factors under section 596(2) of the FW Act are satisfied and that it would be appropriate to permit the Respondent to be legally represented pursuant to section 596(1 ).”

[5] The applicant has notified her objection to the grant of permission for the respondent to be represented on the following basis:

“The continued intimidation tactics via email from the employers legal Representative over the past months,

i.     Regarding lodgement of documents and they continued to advise me they would object to my filing of documents outside the timeframe given (which I complied with on both occasions )

ii.     My failure to gain legal representation.

iii.     Also regarding a work cover claim that the employers insurance company has accepted (I have been advised has no bearing on a FWC Hearing)


I feel it is unfair for them to be legally represented as I have been unable to afford legal representation and the “No Win No Fee “law firms will not represent  me due to my low wage.

When I initially spoke to FWC regarding my employers actions I was advised that the system is set up for people to represent themselves at these Hearings.”

[6] The solicitors for the respondent made the following submission in response:

“In relation to the comments of Ms Nix can you please note as follows;


1. We categorically dispute that we have engaged in “continued intimidation “of Ms Nix. One email was sent to Ms Nix regarding complying with the orders of the Fair Work Commission (a copy of this email has previously been provided to Fair Work Commission).
2. Ms Nix’s legal representation is a matter for her and we have seen no evidence that she has applied for and been denied representation from any of the “no win no fee” law firms as she advises.
3. The matter has now only been listed for one day and there is a substantial amount of material filed by both parties. We still maintain that it would assist the Commission for one party to be legally represented.
4. The Respondent has no HR department and no employees who have experience in Fair Work matters. The Respondent does want to be represented by a lawyer given the seriousness of the allegations made against it.”

[7] A Full Bench of the Commission in King v Patrick Projects Pty Ltd,[2015] FWCFB 2679, recently dealt with the question of permission to be represented:

“Consideration

[13] It is well established that in order to exercise the discretion available to the Commission to grant permission to be represented, one of the conditions in s.596(2) must be met. Such conditions having been met does not make representation automatic but still requires the exercise of discretion on the part of the Commission.

[14] The proper approach to the application of s.596 was discussed as follows by the Federal Court (Flick J) in In Warrell v Walton:

“[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”.”

[25] 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. The legislative desire for informality and a predisposition to parties not being represented by lawyers emerges, if not from the terms of s 596, from the terms of the Explanatory Memorandum to the Fair Work Bill 2008 (Cth)...”

Complexity

[15] The complexity of the subject matter of the proceedings is the key consideration under s.(596)(2)(a) of the Act. In Urbanski v MSS Security Pty Ltd it was found that, even if legal representation would enable a matter to be dealt with more efficiently, a lack of complexity in the matter may still mean that permission to appear is declined. 5

[16] The Respondent seeks to assert that this matter is complex because of the high volume of documents and wide range of issues in the Appellant’s statement some of which are irrelevant to the issue of unfair dismissal.

[17] We do not find that this matter is one that can be characterised as complex. The Members of the Commission routinely deal with applications which are voluminous in size and riddled with materials extraneous to the application. This commonplace occurrence does not constitute legal or factual complexity. Sheer volume of documents or the existence of extraneous issues to the application will not in and of itself equate to complexity for the purposes of s.(596)(2)(a) of the Act.

Fairness to the parties

[18] With respect to fairness pursuant to s.596(2)(b) of the Act, the relevant test is not an assessment of the skills and education of the individual employer representative (Mr Burton), but rather it involves an examination of the resources available to the Respondent as a whole. In this matter, the Respondent Patricks Projects is a large organisation with considerable resources at its disposal. Having regard to the internal legal, human resources and other specialist personnel available to the Respondent, we do not consider that it would be unfair not to allow the Respondent to be legally represented.

[19] Moreover, the onus is on the Respondent to show that it is unable to represent itself. There was no evidence before the Commissioner that the well-resourced employer enterprise, Patrick projects, was unable to represent itself in the substantive proceedings. As such, the findings of the Commissioner were not open to him on the evidence.” [citations omitted]

[8] The approach of the Full Bench in King v Patrick Projects Pty Ltd to the application of s.596(2)(a) is directly relevant to the current matter. The respondent has filed a significant amount of material including witness statements, all of which have been prepared by the respondent’s lawyers. The applicant, although unrepresented, has filed detailed material in support of her application. The matters to be determined are not complex and the position adopted by each party is readily identified in their respective material.

[9] The approach of the Full Bench in King v Patrick Projects Pty Ltd to the application of s.596(2)(b) is directly relevant to the current matter. Whilst there is an obvious difference between the size and resourcing of the respondent in the present matter and Patricks Projects in the other matter, the issues before the Commission will be determined on the basis of the evidence of both the applicant and the respondent’s witnesses. I do not consider that it would be unfair to the respondent to have its case put by Mr Vincent, Managing Director of the respondent and the respondent’s key witness on either the jurisdictional challenge or the merits of the application.

[10] I also note that the respondent has not put to the Commission any evidence that the respondent would be unable to represent itself effectively in this matter.

[11] It appears that in the present matter the only reason advanced in support of permission to be represented by a lawyer or paid agent based on s.596(2)(c) is that:

“10. The Respondent maintains that it does not have any legal expertise. Refusing to permit legal representation could result in failure to accord procedural fairness.

[12] The most that can be said of this submission is that it has nothing to do with fairness between the parties.

[13] Furthermore the Commission’s ability and duty to accord procedural fairness to the parties in an unfair dismissal matter has never been conditional upon legal representatives being present to represent a particular party. The Commission has and will continue to accord procedural fairness to parties in proceedings before the Commission without the need for any legal representative to be present.

[14] Permission for the respondent to be represented by a lawyer or paid agent is refused

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