Shiva Hemayat v Friendly Society Medical Association Limited

[2019] FWC 5864

[2019] FWC 5864

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
Section 394 - Application for unfair dismissal remedy

Shiva Hemayat
v
Friendly Society Medical Association Limited
(U2019/6318)

DEPUTY PRESIDENT ANDERSON ADELAIDE, 23 AUGUST 2019

Application for an unfair dismissal remedy – representation – efficiency – fairness – permission granted

[1] Ms Shiva Hemayat (Ms Hemayat or the Applicant) has applied to the Fair Work Commission (the Commission) under section 394 of the Fair Work Act 2009 (the FW Act) for an unfair dismissal remedy in relation to her dismissal by Friendly Society Medical Association Limited (National Pharmacies, the employer or the Respondent). She claims to have been unfairly dismissed on 17 May 2019.

[2] National Pharmacies oppose the application. It asserts that Ms Hemayat was lawfully and fairly summarily dismissed for serious and wilful misconduct.

[3] On 15 July 2019 conciliation of the application was conducted by a Commission-appointed conciliator. It was not resolved. It was referred to me for hearing and determination.

[4] On 29 July 2019 I listed the matter for hearing on 10 and 11 September 2019. I directed that materials be filed by Ms Hemayat and by National Pharmacies in advance of the hearing. I made certain further procedural orders on 2 August 2019.

[5] My directions required any party seeking to be represented to request permission in writing. National Pharmacies seeks permission to be represented by a legal practitioner under section 596 of the FW Act.

[6] The request by National Pharmacies is opposed by Ms Hemayat.

[7] This decision determines that question.

The Facts

[8] The facts relevant to the issue of representation are generally not in dispute (facts relevant to other matters are in dispute).

[9] The employer is a large employer in the retail pharmaceutical industry trading as National Pharmacies. It has human resource capability. It has, in relation to this application, sought and obtained the assistance of external specialists. Its response to Ms Hemayat’s application was made under the name of its Senior Manager of Human Resources (Ms Richardson) but filed by its advisers, EMA Consulting Pty Ltd. It seeks to be represented at the hearing of the matter by a legal practitioner from EMA Legal (Ms Smith).

[10] Ms Hemayat has also obtained specialist assistance in filing and prosecuting her claim. She is being represented by Ms Travers, a lawyer and National Industrial Officer of The Association of Professional Engineers, Scientists and Managers Australia (formerly known as APESMA but now known as Professionals Australia). She intends to be represented at the hearing of the matter by Professionals Australia.

[11] Although Ms Travers is a lawyer, Ms Hemayat is not required to seek permission to be represented given that section 596(4) of the FW Act excludes from that obligation legal practitioners who are employees or officers of an industrial organisation. Professionals Australia is such an organisation.

The Legal Principles

[12] Section 596 of the FW 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.”

[13] The granting of permission under section 596 involves a two-step process. The first is that at least one criteria 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”. 1  The second is that the discretion must be exercised in favour of the applicant for permission2 in the sense that the discretion concerns whether to grant permission, not whether to deny or withdraw an established right.

The Submissions

[14] National Pharmacies say that the employer has in-house human resource capability but that this does not extend to advocacy capability. It submits that it would be unfair to require officers not experienced in advocacy in the Commission to undertake such a role particularly in a matter that has escalated to arbitration. It also says that Ms Hemayat will be represented by a lawyer and experienced officer of an industrial organisation, thus creating unfairness to the employer if it were required to be represented by an internal human resource officer without equivalent expertise.

[15] Further, National Pharmacies submit that the matters in issue involve disputed facts as to conduct, that issues of credit may need to be determined, and that such issues are most effectively assessed via examination in chief and cross examination by experienced advocates and practitioners.

[16] Ms Hemayat opposes the request on multiple grounds. She says that the default position in proceedings before the Commission is that parties normally represent themselves. She says that the factual matters are not particularly complex. She says that sufficient time exists for human resource officers of the employer to prepare their case and develop the necessary capability to effectively represent their interests.

Consideration

[17] National Pharmacies can only be represented by a lawyer (or paid agent) at the hearing with permission of the Commission. 3

[18] Whether to grant permission is a discretionary matter to be made having regard to the factors set out in section 596(2) of the FW 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.

[19] I agree with Ms Hemayat that 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 proceedings 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.” 4 

[20] I now turn to the considerations in section 596(2).

Section 596(2) Efficiency

[21] As a general proposition, where an application raises disputed questions of fact alleging serious misconduct and where those findings of fact are likely to be central to the determination of whether a dismissal was harsh, unjust or unreasonable then such applications are most efficiently dealt with by representatives who have expertise and experience in advocacy, including in the examination and cross examination of witnesses.

[22] On the material before me to date, this appears to be such a matter. It concerns alleged conduct which the employer considered to be wrongdoing warranting summary dismissal. The nature of that conduct, whether it occurred previously by the Applicant and whether the employer had previously been aware of or condoned such conduct are matters in issue. Multiple witnesses will be giving evidence on these contested issues at the hearing.

[23] Although the application does not raise any complex questions of law (for example, no jurisdictional issues arise) the likely extent of fact-finding over disputed and historic events across multiple periods of time in a serious misconduct matter adds its own degree of complexity to the proceedings.

[24] Although stronger cases of efficiency taking into account complexity exist, I am nonetheless satisfied that section 596(2)(a) is made out. Granting permission for National Pharmacies to be represented by a lawyer in these proceedings would enable the hearing to be conducted more efficiently, taking into account complexity.

Sections 596(2)(b) and (c) – Fairness

[25] The fact that sub-section (1) of section 596 is made out does not compel the exercise of discretion in favour of the person requesting permission. 5 All factors in the section need to be considered, including fairness (although not all need to be made out). Sub-sections 596(2)(b) and (c) require 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] Having regard to the overall circumstances, I find that internal National Pharmacies officers would be unlikely to “effectively” represent the employer in the true sense of the word.

[27] I conclude that it would be unfair not to allow National Pharmacies permission to represent itself effectively.

[28] I now turn to sub-section 596(2)(c) of section 596. This sub-section requires the Commission to take into account fairness between the person seeking permission (National Pharmacies) and other persons in the matter (Ms Hemayat). This consideration supports the request for permission.

[29] Ms Hemayat will be represented by a legally qualified officer of an industrial organisation. To not enable National Pharmacies to avail itself of a broadly equivalent level of representative capability would be unfair. This may create actual or perceived injustice with the conduct of proceedings.

[30] Having regard to fairness between the parties, it would be unfair to refuse the employer’s request.

Conclusion

[31] The considerations of efficiency through effective representation weigh towards a grant of permission.

[32] The issue of fairness between the parties weighs strongly in favour of such a grant.

[33] In exercising discretion each factor in section 596(2) does not have to be made out although each is considered.

[34] I am satisfied that permission should be granted particularly having regard to the issue of fairness between the parties.

[35] Ms Hemayat’s application remains listed for hearing on 10 and 11 September 2019. As set out in my directions of 29 July 2019, all persons who have witness statements filed in their name need to be present at the hearing and be available for cross examination and to answer any questions the Commission may pose.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

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

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

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

 4   Explanatory Memorandum to the Fair Work Bill 2008 at paragraph 2291

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