Richard Fishers v Serco Australia Pty Ltd T/A Serco Australia

[2013] FWC 5135

[2013] FWC 5135

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Richard Fishers
v
Serco Australia Pty Ltd T/A Serco Australia
(U2013/1135)

SENIOR DEPUTY PRESIDENT O’CALLAGHAN ADELAIDE, 29 JULY 2013

Termination of Employment - grant of permission.

[1] Mr Fishers has lodged an unfair dismissal application with respect to the termination of his employment with Serco Australia Pty Ltd T/A Serco Australia (Serco). This application has been referred to me for determination. It has been the subject of a directions conference on 27 June 2013 and an initial hearing by telephone on 22 July 2013. It is listed for a hearing on 7 August 2013.

[2] The hearing on 22 July 2013 was for the express purpose of considering a request, made by Mr Linke, of counsel, for a grant of permission to represent Serco.

[3] That request was opposed by Mr Dean of United Voice, representing Mr Fishers.

[4] At the hearing on 22 July 2013 Mr Linke argued that a grant of permission was appropriate pursuant to s.596(2)(a) in that his involvement in the matter would enable the evidence of the six proposed witnesses to be more effectively adduced. Further he argued that he could provide independent legal advice to Serco and that whilst there were no jurisdictional issues, his involvement would assist in the consideration of complex factual issues and case law references.

[5] Mr Dean referred me to CEPU v UGL Resources Pty Ltd (Project Aurora) 1 where Richards SDP addressed the concept of “efficiency” as it related to s.596(2)(a).

[6] Mr Dean asserted that the matter was not complex and that Serco’s access to independent legal advice relative to settlement possibilities was not relevant to a grant of permission to appear in a hearing.

[7] Given that Mr Dean is a qualified lawyer who is able to appear without the need for a grant of permission as an employee of a union, I asked Mr Dean to address the extent to which s.596(2)(c) was relevant to Mr Linke’s request. Mr Dean’s position was to the effect that Serco had adequate internal expertise.

[8] Mr Linke was unable to advise me of whether Serco had employees with legal qualifications who could represent it in this matter.

[9] As a consequence, I invited Mr Linke to provide myself and Mr Dean with that information. On 23 July 2013 Mr Linke advised:

“I am instructed that Michele Jones who previously appeared in this matter at the conciliation and directions hearing has a law degree which was conferred in 2011. She has never practised as a lawyer. Her line manager, the Employee Relations Manager, also has a law degree.”

[10] On 23 July 2013 Mr Dean confirmed his position. His written submission was that:

“The Applicant submits that the fact that the person who has carriage of the matter, Ms Jones, has not practiced law occasions no prejudice as (a) the Applicant’s representative is not admitted to practice, (b) Ms Jones is an employment specialist, (c) Ms Jones is legally qualified and (d) Ms Jones has the assistance of, or opportunity to be replaced by, her supervisor who also has legal qualifications.

The Applicant submits that the Commission cannot assume that a legally qualified in-house representative will make proceedings less efficient than an external representative, particularly in a non-complex matter. Indeed to do so would be in some respects counter-intuitive.

The Applicant further submits that to the extent a grant of permission raises issues of fairness, these militate strongly against a grant of permission which would effectively merely expand to three the number of legally qualified persons representing the Respondent, as compared to the Applicants single representative.”

Findings

[11] Section 596(2) states:

“(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.”

[12] The operation of this provision has recently been considered by a Full Bench in G & J Fortunato Group Pty Ltd v J Stranieri. 2 In that matter the Full Bench stated:

“[8]In support of her application for permission to appear, Ms Forsyth relied on s.596(2)(a) and submitted that the grant of permission to appear would enable the matter to be dealt with more efficiently. It was conceded that there was no particular complexity about the appeal and that the matters in paragraphs 596(2)(b) and (c) did not arise in the circumstances of this matter.

[9]We declined to grant permission to appear. There is no particular complexity about the appeal and we were not persuaded that granting permission ‘would enable the matter to be dealt with more efficiently, taking into account the complexity of the matter’. Nor are the matters in s.596(2)(b) and (c) enlivened in the circumstances of this matter.”

[13] Additionally, in Warrall v Walton 3 Flick J concluded:

“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 s596, from the terms of the Explanatory Memorandum to the Fair Work Bill 2008 which provided in relevant part as follows:

2291. FWA is intended to operate efficiently and informally and, where appropriate, in a non-adversarial manner. Persons dealing with FWA would generally represent themselves. Individuals and companies can be represented by an officer or employee, or a member, officer or employee or an organisation of which they are a member, or a bargaining representative. Similarly, an organisation can be represented by a member, officer or employee of the organisation. In both cases, a person from a relevant peak body can be a representative.

2292. However, in many cases, legal or other professional representation should not be necessary for matters before FWA. Accordingly, cl 596 provides that a person may be represented by a lawyer or paid agent only where FWA grants permission.


...

2296. In granting permission, FWA would have regard to considerations of efficiency and fairness rather than merely the convenience and preference of the parties.”

[14] These decisions and decisions such as CEPU v UGL Resources Pty Ltd (Project Aurora) 4 address the obligation to strike a balance between the objective of an informal determination process with equity and efficiency considerations depending on the circumstances of a particular matter.

[15] I am not satisfied that this matter is attended by any substantial complexity such that a grant of permission should be made pursuant to s.596(2)(a).

[16] Mr Linke did not pursue his request on the basis of s.596(2)(b).

[17] In terms of s.596(2)(c), I have particularly noted that Mr Dean has legal qualifications and hence is not required to seek a grant of permission. Were it not for the fact that the advice now available to me indicates that Serco has two legally qualified officers able to represent it in these proceedings, I would have adopted the position that considerations of fairness favoured a grant of permission to Mr Linke. However in the extant circumstances this is clearly not the case.

[18] Accordingly, Mr Linke’s request for a grant of permission is refused.

SENIOR DEPUTY PRESIDENT

 1   [2012] FWA 2966

 2   [2013] FWCFB 4098

 3 [2013] FCA 291

 4   [2012] FWA 2966

Printed by authority of the Commonwealth Government Printer

<Price code A, PR539492>