Rupinderjit Kaur v Hartley Lifecare Incorporated

[2020] FWC 4701

[2020] FWC 4701

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Rupinderjit Kaur
v
Hartley Lifecare Incorporated
(U2020/7344)

DEPUTY PRESIDENT DEAN SYDNEY, 3 SEPTEMBER 2020

Application for an unfair dismissal remedy – permission to be represented – section 596 of the Act – permission granted

[1] This decision concerns an application filed by Ms Rupinderjit Kaur for an unfair dismissal remedy pursuant to s 394 of the Fair Work Act 2009. Ms Kaur was employed by Hartley Lifecare Incorporated (Hartley) until her employment was terminated with effect from 6 May 2020.

[2] A directions conference was conducted on 10 July 2020. Ms Belinda Miller of Clayton UTZ appeared on behalf of Hartley. Ms Kaur appeared on her own behalf. At the conclusion of the conference, directions were issued for the filing of submissions and other evidentiary material and the hearing for arbitration was set down for 16 September 2020. Ms Miller was asked to provide written submissions in support of Hartley’s application for permission to be legally represented.

[3] On 3 August 2020 I granted permission for Hartley to be represented by a lawyer upon having considered the submissions provided by Clayton UTZ on 31 July 2020. In doing so, I was satisfied that the granting of permission would enable the matter to be dealt with more efficiently.

[4] Ms Kaur advised of her opposition to the granting of permission. I conducted a conference on 2 September 2020 to hear the objection. Ms Prue Bindon of Counsel appeared on behalf of Hartley. At the conference, Ms Kaur expressed concerns as to a potential costs application that may be made against her arising from Hartley’s legal representation.

[5] The conference was concluded after Mr Kaur confirmed she was satisfied with Ms Bindon representing Hartley on the basis that Ms Bindon would be the only lawyer who will question her during the hearing. Despite this, Ms Kaur subsequently sent an email advising that she was not satisfied with the decision to allow representation for Hartley and wanted to appeal my decision to grant permission. This decision is published as a result of Ms Kaur’s advice that she wishes to lodge an appeal.

Legal Principles

[6] Section 596 of the Act 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.”

Submissions

Ms Kaur

[7] Ms Kaur objected to permission being granted because there were no complex issues raised in the application, and it would be unfair if Hartley were granted permission to be represented in circumstances where Ms Kaur was not represented. She submitted that she was from a non-English-speaking background and not legally qualified.

[8] In relation to the complexity of the application, Ms Kaur submitted her dismissal was a performance-based termination and was not a matter which required forensic cross examination or was otherwise in complex nature. She further submitted there were no jurisdictional issues in this case.

[9] In relation to considerations of efficiency and fairness, Ms Kaur submitted that Hartley is a large employer in the ACT with access to resources and expertise, including dedicated Human Resources professionals. She also noted that Clayton UTZ provided pro bono legal assistance to Hartley. Accordingly, Ms Kaur submitted that fairness between the parties would be achieved if Hartley was not legally represented.

[10] Ms Kaur submitted that Ms Granger was a senior manager in the business who could effectively represent Hartley. Ms Granger had been the decision maker in relation to the performance issues that had led to Ms Kaur’s dismissal, and had made the decision to dismiss her.

[11] Ms Kaur also submitted that Ms Granger’s expertise was evident by reason of her involvement in the Disability Royal Commission, an audit by the National Disability Insurance Agency, and the preparation of a Ministerial submissions for a migration matter involving another employee of Hartley.

Hartley

[12] Hartley submitted that permission should be granted on the basis of efficiency and that Hartley was unable to represent itself effectively. It sought permission to be represented by Clayton UTZ and Ms Bindon of Counsel.

[13] In respect of efficiency, Hartley submitted that it was unfamiliar with the process of conducting unfair dismissal matters, having not been a respondent to such a claim previously. That being the case, it submitted, there were much greater prospects of the hearing being conducted efficiently and with due focus on the relevant issues to be determined if at least one party was represented. In this regard, Hartley’s representatives would be able to provide efficient and targeted examination of witnesses and oral submissions to assist the Commission to focus on the relevant issues that require its determination.

[14] Hartley’s submissions in respect of efficiency included that the Commission has permitted legal representation in instances where there is a lack of relevant advocacy skills within the organisation.

[15] Hartley is a not-for-profit organisation with limited resources. The majority of its staff are disability support workers, not corporate staff who are able to prepare for and represent it in these proceedings. Further, it does not have any in-house legal staff. While Hartley does have staff with human resources responsibilities, they have not participated in unfair dismissal proceedings previously. Moreover, they are likely to be the witnesses in the matter. For example, Susan Granger, Senior Manager Business and Operations, who leads the HR function, was the decision-maker and will be giving evidence.

[16] Further, Hartley submitted its limited resources were already stretched as they are dealing with the following exceptional circumstances:

•  Disability Royal Commission;

•  audit by the National Disability Insurance Agency;

•  preparation of a Ministerial Submission for a migration matter involving Hartley employees; and

•  an internal audit of their payments to casuals.

[17] Finally, Hartley’s operations are currently under significant strain due to the added demands on it caused by the COVID-19 pandemic.

Consideration

[18] Hartley can only be represented by a lawyer with permission of the Commission. 1

[19] The granting of permission under section 596 involves a two-step process. The first is that at least one criterion in section 596(2) needs to be satisfied. The consideration required by this first step “involves the making of an evaluative judgment akin to the exercise of discretion”. 2  The second is that the discretion, if exercised, must be exercised in favour of the applicant for permission3 in the sense that the discretion concerns whether to grant permission, not whether to deny or withdraw an established right.

[20] It is well established that a grant of permission under section 596 of the Act is a grant of permission for a party to be legally represented, and not a grant of permission with respect to a particular representative. A Full Bench of the Commission has expressed the principle as follows 4:

“The power conferred by s.596(2) is simply to “grant permission for a person to be represented by a lawyer or paid agent in a matter”. Nothing in that language suggests that the power extends to the selection of which particular lawyer or paid agent will represent a party applying for permission. In the proceedings below, the duty of the Commissioner was either to grant or refuse permission for the ATO to be represented by a lawyer. It was not within the power conferred on the Commission to choose who that lawyer would be either by reference to the individual identity of the lawyer or by reference to whether the lawyer was a barrister or a solicitor.”

[21] In exercising discretion on the representation question each factor in section 596(2) does not have to be made out although each must be considered. 5

[22] I now turn to consider the factors set out in section 596(2) of the Act: efficiency (in the context of the complexity of the matter); fairness (in the context of the capacity of the person seeking permission to effectively represent themselves); and fairness between the parties.

[23] I consider that granting permission for Hartley to be represented by lawyers in these proceedings is likely to enable the hearing to be conducted more efficiently. I accept the submissions of Hartley that, having not dealt with an unfair dismissal application before, there are much greater prospects of the hearing being conducted efficiently and with due focus on the relevant issues to be determined if at least one party was represented. In this regard, Ms Bindon’s participation will assist the Commission in minimising the time that might otherwise be taken in cross examination, and will focus Hartley’s submissions on the matters that I need to decide.

[24] In circumstances where the effects of COVID-19 has resulted in a significant increase in the workload of the Commission, it is reasonable to ensure that the Commission’s time is used efficiently.

[25] In relation to fairness, section 596(2)(b) and (c) requires fairness to be considered in two contexts: fairness in the context of the capacity of the person seeking permission to effectively represent themselves; and fairness between the parties.

[26] I accept the submissions of Hartley and am satisfied that it would be unlikely Hartley would be able to represent itself effectively. This is so given it does not have staff with experience in unfair dismissal applications, and its human resources staff are stretched in terms of dealing with other significant matters which are outlined above. Further, Ms Granger will be giving evidence in the proceedings.

[27] In terms of unfairness between persons in the matter, I accept there may be some imbalance between the parties. In this regard I reaffirm my advice given to Ms Kaur during the conference on 2 September 2020 that I will provide her with a reasonable level of assistance and guidance to ensure that her submissions and evidence is fully presented, in a manner consistent with my statutory obligations as an independent statutory office holder.

Conclusion

[28] Taking all of the relevant matters into consideration, I am satisfied that it is appropriate to exercise the statutory discretion to grant permission to Hartley to be represented.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR722444>

 1   Section 596(4) does not apply in this matter

 2   Asciano Services Pty Ltd v Hadfield[2015] FWCFB 2618 at [19]

 3   Calleri v Swinburne University of Technology[2017] FWCFB 4187 at [36]

 4   New South Wales Bar Association v McAuliffe[2014] FWCFB 1663 at [24] cited with approval in Fitzgerald v Woolworths Ltd[2017] FWCFB 2797 at [30] – [32]

 5   Warrell v Fair Work Australia [2013] FCA 291 at [24]