Sergey Kukalev v Prosegur Australia
[2018] FWC 6296
•10 OCTOBER 2018
| [2018] FWC 6296 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Sergey Kukalev
v
Prosegur Australia
(U2018/3239)
| Deputy President Masson | MELBOURNE, 10 OCTOBER 2018 |
Permission to be represented by a ‘lawyer or paid agent’ pursuant to s 596 of the Fair Work Act 2009.
Mr Kukalev (the Applicant) has lodged an application pursuant to s 394 of the Fair Work Act 2009 (the Act) with respect to the termination of his employment with Prosegur Australia (the Respondent). The application is listed for hearing on 12 October 2018.
The Respondent has sought permission to be represented in the proceedings by a lawyer, Ms Simone Caylock of Rigby Cooke Lawyers, which the Applicant has opposed. Directions were issued to the parties during a telephone mention hearing on 25 September 2018 for the filing of submissions in relation to the permission to be represented sought by the Respondent.
In submissions filed on 4 October 2018, the Respondent submitted that in terms of the efficient conduct of the matter there is some complexity having regard to:
(i)the jurisdictional objection it had raised, that of the dismissal being due to a “genuine redundancy”, and the interaction between the meaning of “genuine redundancy” and s 387 of the Act;
(ii)The interpretation and application of relevant enterprise agreement provisions;
(iii)The unusual situation of the Respondent being unable to lead evidence from the sole decision maker and its reliance on that person’s replacement; and
(iv)The Applicant is unrepresented and unfamiliar with the Commission and representation, if afforded to the Respondent, would assist the Commission by allowing a person experienced in appearing before the Commission to deal with these matters.
The Respondent further submitted that the Respondent is unable to represent itself effectively. This was due to the Respondent’s HR Director having been made redundant, with his last day being 12 October 2018 and his unavailability due to handover responsibilities. There are, according to the Respondent, no other HR staff employed by them and it would not be practical for the its sole witness, Mr Peter Rice, to represent the Respondent given his lack of familiarity with the provisions of the Act or experience as an advocate.
The Respondent also referred to the range of allegations made by the Applicant that were, in its submission, serious and potentially defamatory and that it would be unfair not to allow the Respondent to be capably represented in defending or responding to those allegations.
The Applicant filed his submissions in response on 8 October 2018. The Applicant continued to oppose the Respondent being represented by a lawyer on the grounds that:
(i)The matter was not very complicated;
(ii)Mr Rice was, according to his witness statement, well aware of all of the facts and capable of representing the Company;
(iii)The Applicant questioned the motives of the Respondent in terminating the employment of persons who had knowledge of the matter;
(iv)Ms Caylock does not have direct knowledge of the matters that she is representing the Respondent on; and
(v)The Applicant would be representing himself and did not have much experience in hearings and it would be consequently unfair for him to be presenting his case against a lawyer.
Statutory Provisions
In considering the request by the Respondent to be represented by a lawyer, I am required to do so pursuant to Section 596(2) of the Act which relevantly states as follows:
“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; of
(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.”
Consideration
The Respondent can only be represented by a lawyer (or paid agent) at the hearing with permission of the Commission. Whether to grant permission is a discretionary matter made having regard to 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.
The starting point for the exercise of the discretion is that granting permission should be seen as a departure from the default position that a party in a matter before the Commission must normally appear on its own behalf. This proposition is consistent with the statutory scheme:
“FWA is intended to operate efficiently and informally and, where appropriate, in a non-adversarial manner. Persons dealing with FWA would generally represent themselves.”[1]
I now turn to each of the consideration of section 596(2).
Section 596(2)(a) Efficiency
In terms of s 596(2)(a) of the Act, I have 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.
The Respondent has raised a jurisdictional objection in the matter, that being the Applicant’s dismissal was a result of a genuine redundancy. That issue and potentially the interaction with s 387 will require consideration and determination that is likely to be assisted by legal representation.
I agree with the general observation of the Commission in CEPU v UGL Resources Pty Ltd where it was said:
“…where the Respondent (in this case) seeks to agitate a jurisdictional issue then it would follow that representation by a lawyer would be a reasonable course. Jurisdictional issues by their nature are prospectively complex in their own right, and/or else may require a degree of familiarity with court and tribunal jurisprudence or authorities.”[2]
I am satisfied in the circumstances that legal representation will assist with those matters being dealt with more efficiently having regard to their complexity.
Section 596(2)(a) of the Act is made out and weighs in favour of a grant of permission under s 596 of the Act.
Sections 596(2)(b) – Fairness in Respondent’s capacity to effectively represent itself
According to the Respondent, the circumstances confronting it in the present matter are that it does not have experienced personnel available and capable of effectively representing it in the proceedings. Having recently determined to make the Respondent’s HR Director redundant, there are according to the Respondent no other personnel within its business with knowledge of the Act or experience before the Commission.
In the circumstances described above I am satisfied that the Respondent would be unable to effectively represent itself in the proceedings. This weighs in favour of a grant of permission under s 596 of the Act.
Sections 596(2)(c) – Fairness between the parties
I now turn to sub-clause 596(2)(c) of the Act. This sub-section requires the Commission to take into account fairness between the person seeking permission (the Respondent) and other persons in the matter (the Applicant).
The Applicant intends to represent himself in the proceedings. While he may have previously appeared in Commission proceedings, there is no basis on which to conclude he is so experienced that it would create some unfairness in circumstances where the Respondent’s request for representation was rejected.
This consideration does not support the Respondent’s request and is not made out and weighs against a grant of permission under s 596 of the Act.
Conclusion
While the issue of fairness between the parties weighs against a grant of permission to appear on behalf of the Respondent, considerations of complexity and the capacity of the Respondent to effectively represent itself weighs in favour of a grant of permission under s 596 of the Act.
In exercising my discretion, each factor in section 596(2) does not have to be made out, although each should be considered.
I am satisfied that permission should be granted having regard to the capacity of the Respondent to effectively represent itself and the complexity of the matter, specifically the jurisdictional issue raised by the Respondent.
Under s 596 of the Act, I grant permission for the Respondent to be represented by a lawyer in matter U2018/3239 listed to be heard on 12 October 2018.
DEPUTY PRESIDENT
<PR701212>
[1] Explanatory Memorandum to the Fair Work Bill 2008 at paragraph 2291.
[2][2012] FWA 2966 at [23].
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