Sarah Hicks

[2019] FWC 726

[2019] FWC 726

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.789FC - Application for an order to stop bullying

Sarah Hicks
(AB2019/17)

DEPUTY PRESIDENT BEAUMONT PERTH, 11 February 2019

Application for an FWC order to stop bullying – application for representation under s 596 refused.

[1] This matter involves an application brought by Ms Hicks (the Applicant) under s 789FC of the Fair Work Act 2009 (Cth) (the Act) against a named person who is alleged to have bullied her at work (the Application). The employer of both the Applicant and the named person is Murujuga Aboriginal Corporation (the Employer). The matter was listed for private conference on 6 February 2018. Both the Applicant and the Employer sought permission to be represented under s 596(1). Having had regard to the considerations contained in s 596(2), and the submissions made by the representatives, I concluded not to grant permission for the Applicant and the Employer to be represented. The reasons for my decision follow.

Background

[2] The Applicant lodged the Application on 11 January 2019. The matter was allocated to my Chambers and was subsequently listed for a conference by telephone on 29 January 2019. Prior to the conference commencing, the Associate to my Chambers instructed the parties as to what was required of them regarding their conduct in the conference. Amongst the instructions provided to the parties they were informed how to refer to a Member of the Commission, and not to talk over each other and the Deputy President when she was speaking.

[3] Having joined the conference, I took appearances, informed the parties that the conference would be conducted in private and the proceedings were not being recorded, and invited the representatives to make their applications concerning s 596.

[4] The representative of the Applicant, Mr Paul King, of Regis Industrial Relations (Mr King), made an application to represent the Applicant for the purpose of the conference. Similarly, Mr Nish Sooriyapava, Employsure Law Pty Ltd (Mr Sooriyapava), made an application to represent the Employer.

[5] Mr King was directed to provide his submissions first and thereafter Mr Sooriyapava was directed to provide his submissions. Mr King was given a further opportunity to make submissions on s 596 having heard from Mr Sooriyapava, and both parties were asked if they had anything further to add. Neither party had anything further to add.

[6] Having heard from both parties I proceeded to inform the parties of my decision and the reasons for that decision. During the course of doing so Mr King started to talk over me whilst I was delivering that decision. Mr King was informed directly that I was talking and that he had been provided with the opportunity to provide submissions. I subsequently gave my decision and reasons whilst Mr King continued to interject. I explained to Mr King that I was not engaging in a debate or argument with him concerning representation. I observed again that he had been provided with the opportunity to provide his submissions, and afforded the opportunity to provide additional submissions having heard from Mr Sooriyapava. On concluding what I had to say, noting that permission and not been granted and that Mr King persisted to talk over me, Mr King and Mr Sooriyapava were removed from the conference.

[7] During the course of the conference, Mr King sent an email to Chambers dated 6 February 2019, timestamped 2:30pm titled ‘In the strictest confidence’. In that email Mr King stated ‘I was denied the opportunity of putting that fact forward and important consideration in representation’. Mr King was referring to a submission that he not advanced in his initial oral submissions, submissions in reply, nor when provided with an opportunity to add anything further. In light of Mr King’s notation of ‘In the strictest confidence’, I have not disclosed the submission that he sought to advance.

[8] Chambers received a further email from Mr King dated 6 February 2019, timestamped 2:49pm. It read:

Dear Associate

In reference to the above mentioned matter
Could the decision as to representation be made available in writing so that an appeal can be commenced ….
Thank you

Consideration

[9] Section 601(1) of the Act states:

(1) [Which decisions must be in writing]

The following decisions of the FWC must be in writing:

(a) a decision of the FWC made under a Part of this Act other than this Part;


(b) an interim decision that relates to a decision to be made under a Part of this Act other than this Part;


(c) a decision in relation to an appeal or review.

[10] Section 601(2) provides that ‘The FWC may give written reasons for any decision that it makes’.

[11] While I consider it is not the usual course to reduce to writing the decision to grant, or not grant as the case may be, permission under s 596 in circumstances of a private conference to deal with an application brought under s 789FC, given the request of Mr King, I have determined to do so.

[12] Section 596(2) states:

596 Representation by lawyers and paid agents

….

(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.

[13] In short, Mr King asserted among other matters, that permission for representation should be granted pursuant to s 596(2)(a) because the matter gave rise to complex issues and that granting permission would enable the matter to be dealt with more efficiently. He referred to the factual dispute between the parties and asserted that he had been involved with the matter from the commencement of proceedings.

[14] In terms of s 596(2)(b) Mr King submitted that it would be unfair not to allow the Applicant to be represented as the Applicant in effect needed to trust the proceedings and required protection of her health and safety in the workplace.

[15] In terms of s 596(2)(c) Mr King noted that the Applicant would otherwise be unrepresented and that the Employer had sought permission to be represented.

[16] On behalf of the Employer, Mr Sooriyapava submitted with regard to s 596(2)(a) that it would enable the matter to be dealt with more efficiently given the complexity of a claim of this nature, which was compounded by the nature of the factual disagreement between the employees, and the Employer prior to the claim being lodged. Further, there was a volume of material on file.

[17] In brief, Mr Sooriyapava submitted that whilst there had been correspondence between himself and Mr King regarding a conflict of interest dispute, for the purpose of the conference there was no opposition to the Applicant being represented by a paid agent. Mr Sooriyapava submitted that the Mr King had previously been engaged by the Employer in workplace relations matters, which he ultimately intended to flag in a more formal manner should the Application proceed to a public hearing.

Findings

[18] I considered the extent to which a grant of representation should be issued on the basis that it would enable the matter to be dealt with more efficiently, because of its complexity. I was not satisfied that this was the case. As I informed the parties, the material before me did not establish a level of complexity other than determination of this issue on the facts. Further, the proceedings were at a preliminary stage of a first conference where the purpose was to ascertain the status of the Application and to glean an understanding of what the Applicant had asserted in addition to that which had been asserted by the Employer.

[19] From the material on file it was apparent that the Employer had not yet conducted a workplace investigation into the complaint that it had received from the Applicant on or around 19 December 2018. This had in part been due to staff being on leave during the Christmas period, issues with the Employer’s computer system, the Applicant declining to formalise the workplace bullying complaint in writing and the Applicant taking personal leave. While it was apparent there was a factual dispute the material on file was not voluminous. On that basis, permission was not granted under s 596(2)(b).

[20] In terms of the second limb of Mr King’s submissions, relative to the Applicant’s asserted incapacity to represent herself effectively, there was no submission made or evidence before me that persuaded me that the Applicant was not able to represent herself effectively in the context of the private conference.

[21] Further, I was not satisfied that issues of fairness pursuant to s 596(2)(c) applied so as to favour a grant of permission in this instance. Ms Magner, the representative employee of the Employer, was a Corporate Services Manager. There was no suggestion that she was versed in matters of this kind, human resources, or for that matter industrial relations and employment law, but she was adequately positioned to talk of what had occurred; as was Ms Hicks. As such, I did not consider s 596(2)(c) was satisfied for either party.

[22] For the reasons set out in this decision, I was not prepared to grant permission for representation of the Applicant or the Employer by a paid agent or lawyer respectively under s 596(2) for the purposes of the preliminary conference.

DEPUTY PRESIDENT

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