Stephen Lucas v Sparta Holdings Pty Ltd
[2014] FWC 2116
•31 MARCH 2014
[2014] FWC 2116 |
FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Stephen Lucas
v
Sparta Holdings Pty Ltd
(U2013/15864)
COMMISSIONER CAMBRIDGE | SYDNEY, 31 MARCH 2014 |
Termination of employment - representation by lawyers and paid agents.
[1] This Decision involves an application for unfair dismissal remedy made pursuant to s.394 of the Fair Work Act 2009 (the Act). The application was made by representatives acting on behalf of Stephen Walter Lucas (the applicant). The respondent employer is Sparta Holdings Pty Ltd (the employer).
[2] This Decision is confined to the discrete question as to whether the Fair Work Commission (the Commission) should grant permission for the employer to be represented by a lawyer or paid agent.
[3] The application was filed on 14 November 2013, and the employer has not filed a response and has refused to participate in conciliation.
[4] On 20 February 2014, Watson Law Pty Ltd,lawyers, filed a Notice of Representative Commencing to Act on behalf of the employer.
[5] On 26 March 2014, the applicant formally raised objection to the employer being represented by a lawyer. This objection was primarily advanced on what I perceive to be a proposition that the Commission should refuse permission for the employer to be represented by a lawyer in the interests of justice and fairness.
[6] The applicant provided a written submission which maintained the objection to the Commission granting permission for the employer to be represented by a lawyer. The employer has continued its request for permission to be granted for it to be represented by a lawyer.
[7] The Commission conducted a Hearing on 31 March 2014 to deal with the question of whether permission should be granted for the employer to be represented by a lawyer or paid agent. At the Hearing regarding representation, Ms K Watson, solicitor, appeared for the employer and made submissions in support of permission being granted for the employer to be represented by a lawyer or paid agent. The applicant appeared in person and made submissions which opposed the permission sought for legal representation.
[8] During the Hearing on 31 March, Ms Watson made submissions which included mention that the applicant had been represented by Australian Dismissal Services. The application had actually been made by a Grace Collier, the applicant’s representative. It was submitted by Ms Watson that the applicant had chosen to become self-represented and this decision by the applicant should operate as support for permission to be granted for the employer to similarly choose to be represented.
[9] In response to this suggestion, the applicant provided some surprising information about his contractual arrangements with Australian Dismissal Services. The applicant said that he had paid Australian Dismissal Services $1,000.00 as an “up front” fee and that he understood that if the matter did not settle at “mediation” he would be required to pay a further $1,000.00 in order to have Australian Dismissal Services represent him at any arbitration.
[10] The employer refused to participate in the scheduled conciliation and it also refused to participate in some re-scheduled discussions regarding settlement which had been suggested by the Commission Conciliator. Although no conciliation of the matter took place, the applicant said that Australian Dismissal Services required payment of the additional $1,000.00 before it would continue to act on his behalf.
[11] The applicant said that he could not afford to pay the further $1,000.00 and instead Australian Dismissal Services accepted a further $100.00 to release the applicant from any contractual obligations. Consequently, the applicant said that he was financially compelled to become self-represented as he had paid $1,100.00 to Australian Dismissal Services and the matter had not even proceeded to any “mediation”.
[12] It is not the role of the Commission to assess the ethical propriety of lawyers or paid agents who represent Parties in proceedings before it, and in the absence of any opportunity for Australian Dismissal Services to be heard in respect to the circumstances alleged by the applicant, no firm conclusions can or should be made. However, if the applicant paid $1,000.00 which anticipated a representative’s participation in conciliation proceedings and no such proceedings actually took place, it would seem questionable to require a payment of a further $100.00 to be released from any contractual obligations.
[13] I have carefully examined and considered the totality of the respective submissions of the Parties as the basis for this Decision regarding permission for representation by lawyer or paid agent.
Consideration
[14] The question of representation in proceedings before the Commission is governed by section 596 of the Act, which is in the following terms:
“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.”
[15] It should be noted that these provisions represent a more stringent requirement for the granting of permission than existed under the predecessor provisions of the Workplace Relations Act 1996. There have been a number of Decisions of Fair Work Australia (FWA) and more recently, the Commission, which have recognised the legislative intention to broadly restrict and limit the basis upon which permission would be granted for legal (and paid agent) representation in proceedings before either FWA or the Commission as compared with the Australian Industrial Relations Commission. In this respect, I refer in particular to the Decision of Harrison C in Rodney James Rogers v Hunter Valley Earthmoving Company Pty Ltd [2009] FWA 572, and the Decision of Lewin C in Chris Lekos v Zoological Parks and Gardens Board[2011] FWA 1520.
[16] Further, the legislative intention underpinning s.596 of the Act has been the subject of Judicial Review in the (incorrectly named) Judgment of Warrell v Walton 1 (Warrell) and I refer in particular to paragraph 25 of that Judgment.
[17] Upon examination of subsection 596 (2), there appears to be three criteria which separately or in combination, provide basis upon which the Commission can grant permission for a lawyer or paid agent to represent a party in proceedings such as the Hearing of a claim for unfair dismissal. The three criteria which can be identified in paragraphs (a), (b) and (c) of subsection 596 (2) of the Act, can be paraphrased as: (a) complexity/efficiency; (b) inability; and (c) fairness.
[18] In this case, the employer submitted that all of the criteria contained in subsection 596(2) of the Act were satisfied in a manner which provided basis to grant permission for it to be represented by a lawyer.
Complexity/Efficiency - Subsection 596 (2) (a)
[19] The employer submitted that although the matter was not particularly complex, it did involve the resolution of various factual conflicts which would be assisted by legal representatives. Alternatively, the applicant rejected that the resolution of factual contests would be assisted by lawyers.
[20] In respect of the issues of complexity and efficiency, the circumstances that surround the dismissal of the applicant involve questions of factual dispute which routinely require determination in unfair dismissal proceedings.
[21] Consequently, I am not convinced that the matter would be dealt with more efficiently with the assistance of legal representatives.
Inability - Subsection 596 (2) (b)
[22] The employer did not advance any strong argument that it was unable to represent itself effectively without a lawyer. Some issue of childcare was suggested by Ms Watson but this seemed to manifest more as a potential inconvenience rather than any inability.
[23] In addition, the difficulty that is presented when a person has to be both witness and advocate is similarly experienced by the unrepresented applicant.
[24] Upon examination, the employer’s submissions represented a reflection of desirability for legal representation rather than any inability to adequately represent itself. Consequently, I do not believe that the employer would be unable to represent itself effectively without a lawyer.
Fairness - Subsection 596 (2) (c)
[25] In this instance, both Parties have made submissions which have stressed the question of fairness. The issue of fairness between the person and other persons in the matter has some significance. The employer submitted that unfairness arose if it were denied an opportunity to be represented by lawyers. The applicant has submitted that it would be unfair to permit the employer to be represented by a lawyer.
[26] Importantly, if permission for legal representation for the employer was granted, something of an imbalance would emerge, whereby it would be represented by a lawyer while the applicant would be self represented. The resultant imbalance would create great potential for the absence of a fair and just Hearing, as was identified by the Federal Court Judgment in the Warrell case. The employer sought to draw a contrast between the capacities of the applicant in this case with those of the applicant in the Warrell case.
[27] Notwithstanding any differences that may exist as between the capacities of one applicant and another, applying the reasoning contained in the Judgment in Warrell, I consider that unfairness would be created by the granting of the permission for legal representation. The resultant imbalance created by the more advantageous representation of the employer against the self represented applicant should be avoided. Therefore the fairness criterion would, in this instance, operate strongly against granting permission.
[28] In view of the conclusions that I have reached in respect of each of the relevant aspects of subsection 596(2) of the Act, the permission sought by the employer to be represented by a lawyer is refused.
COMMISSIONER
Appearances:
Mr S Lucas appeared on his own behalf.
Ms K Watson, solicitor, appeared on behalf of the employer.
Hearing details:
2014.
Sydney:
March, 31.
1 Warrell v Walton [2013] FCA 291.
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