Stephen Woodward v Greyhound Australia Pty Ltd

[2015] FWC 2105

[2015] FWC 2105

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Stephen Woodward
v
Greyhound Australia Pty Ltd
(U2014/11992)

COMMISSIONER CLOGHAN PERTH, 9 APRIL 2015

Application for relief from unfair dismissal - representation.

[1] On 26 August 2014, Mr Stephen Woodward (Mr Woodward or Applicant) made application to the Fair Work Commission (Commission) seeking a remedy for alleged unfair dismissal from his former employer, Greyhound Australia Pty Ltd (Greyhound or Employer).

[2] The application was made pursuant to s.394 of the Fair Work Act 2009 (FW Act).

[3] This Decision deals with Mr Woodward’s objection to the Employer being represented by a lawyer in the hearing into the substantive merits of his application on 13 April 2015.

RELEVANT LEGISLATIVE FRAMEWORK

[4] Section 596 of the FW Act sets out the provisions when the Commission may grant permission for a party to proceedings to be represented by a lawyer or paid agent as follows:

“(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.

...”

RELEVANT BACKGROUND

[5] Mr Woodward is represented by Mr Glenn Ferguson, Senior Projects Officer, Transport Workers’ Union of Australia, Western Australian Branch (TWU).

[6] The Employer is seeking to be represented by Ms Mussared, a solicitor from Herbert Smith Freehills at the hearing on 13 April 2015.

[7] On 23 February 2015, the Employer’s solicitor provided a written submission in support of an application seeking leave for the Employer to be represented by a lawyer.

[8] On 3 March 2015, the Applicant’s representative provided a submission in opposition to the Employer being represented by a lawyer.

[9] On 13 March 2015, the Employer’s legal representative provided a response to the Applicant’s submission on 3 March 2015.

CONSIDERATION OF EMPLOYER’S APPLICATION TO BE REPRESENTED BY A LAWYER PURSUANT TO s.596 OF THE FW ACT

[10] Flick J, in Warrell v Walton [2013] FCA 291 stated:

“…It is apparent from the very terms of s 596 that a party “in a matter before FWA” must normally appear on his own behalf. That normal position may only be departed from where an application for permission has been made and resolved in accordance with law, namely where only one or other of the requirements imposed by s 596(2) have been taken into account and considered. The constraints imposed by s 596(2) upon the discretionary power to grant permission reinforce the legislative intent that the granting of permission is far from a mere “formal” act to be acceded to upon the mere making of a request. Even if a request for representation is made, permission may be granted “only if” one or other of the requirements in s 596(2) is satisfied. Even if one or other of those requirements is satisfied, the satisfaction of any requirement is but the condition precedent to the subsequence exercise of the discretion conferred by s 596(2): i.e., “FWA may grant permission…”. The satisfaction of any of the requirements set forth in s 596(2)(a) to (c) thus need not of itself dictate that the discretion is automatically to be exercised in favour of granting “permission”.

The appearance of lawyers to represent the interests of parties to a hearing runs the very real risk that what was intended by the legislature to be an informal procedure will be burdened by unnecessary formality. The legislative desire for informality and a predisposition to parties not being represented by lawyers emerges, if not from the terms of s 596, from the terms of the Explanatory Memorandum to the Fair Work Bill 2008 which provided in relevant part as follows:

“2291.    FWA is intended to operate efficiently and informally and, where appropriate, in a non-adversarial manner. Persons dealing with FWA would generally represent themselves. Individuals and companies can be represented by an officer or employee, or a member, officer or employee or an organisation of which they are a member, or a bargaining representative. Similarly, an organisation can be represented by a member, officer or employee of the organisation. In both cases, a person from a relevant peak body can be a representative.
2292.    However, in many cases, legal or other professional representation should not be necessary for matters before FWA. Accordingly, cl 596 provides that a person may be represented by a lawyer or paid agent only where FWA grants permission.
…
2296.    In granting permission, FWA would have regard to considerations of efficiency and fairness rather than merely the convenience and preference of the parties.”

[11] The Employer has addressed the three (3) requirements in s.596(2) of the FW Act. At least one of the requirements must be satisfied, for the Commission to consider its general discretion to grant permission for Greyhound to be represented by a lawyer.

[12] I intend to examine, in particular, s.596(2)(c) of the FW Act.

Section 596(2)(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

[13] The Applicant is represented by Mr G Ferguson, who is a regular attender at the Commission representing members of the TWU. I have no reason to dispute the Employer’s submission that Mr Ferguson has appeared in the Commission in a diversity of matters (including unfair dismissals) since 1999. Mr Ferguson certainly has appeared before the Commission, as presently constituted, on a range of matters.

[14] In contrast, the Employer acknowledges that it has a discrete Human Resources department, however, its personnel are not experienced in preparing and presenting cases before the Commission. Further, the Human Resource Manager, and a Human Resource Advisor, will be giving evidence on behalf of the Employer in resisting Mr Woodward’s application that he was unfairly dismissed.

[15] The requirement in s.596(2)(c) of the FW Act, is that it would be unfair not to allow one party to be represented by a lawyer or paid agent, taking into account fairness between that party, and the other party, in the same matter.

[16] In this application, the Applicant is represented by a TWU official who, although not legally qualified, has considerable advocacy experience before the Commission.

[17] For s.596(2)(c) of the FW Act to become operative, it is necessary to consider whether it would be, in the circumstances of this application, unfair not to allow the Employer to be represented by a lawyer or paid agent.

[18] If I adopt the statutory definition of “unfair” as set out in Part 3-2 - Unfair dismissal, at s.385 of the FW Act, it is a dismissal which is, “harsh, unjust or unreasonable”.

[19] Alternatively, if I adopt the definition in the Australian Concise Oxford Dictionary “unfair”, is a situation which is, “not equitable or honest or impartial...”.

[20] In this case, if permission was not granted for the Employer to be represented by a lawyer, an inequity or disparity would exist between representation by an experienced TWU advocate for the Applicant, and a Human Resource person unfamiliar with dismissal proceedings in the Commission, for the Employer. If I did not allow representation by a lawyer or paid agent for the Employer, the Commission would be affirming that the above situation was just and reasonable. I am not able to come to that conclusion.

[21] It is notable that the statutory “note” to s.596 of the FW Act, refers to the disparity of one party represented by a person with “experience in workplace relations advocacy” and another party which does not have the same experience. While I concur with the principle set out in the statutory “note”, I do not consider the limitation in terms of size of the business relevant - the principle of inequity regarding “workplace relations advocacy”, is applicable, in my view, irrespective of the size of the business.

[22] The Explanatory Memorandum to the Fair Work Bill 2008 states at paragraph 2296 that, in granting permission, for lawyers and paid agents to appear, the Commission should focus upon efficiency and fairness rather than the convenience or preference of the parties. From my observation of the lawyers who appears before me, generally they do not burden the Commission with unnecessary formality; by and large, lawyers bring focus and efficiency to proceedings. Of course, there are exceptions, but these variables do not, in my view, detract from the generalisation.

[23] Finally, I note that it is common for one party, including the TWU in this application, to allege that, if the employer has a specialist Human Resource department, those persons would have academic qualifications in Human Resource Management “and as such would have studied units of Industrial Law”. Consequently, it is argued, that the relevant persons cannot claim to have no understanding of the Commission. Such a submission may be correct, however, the statutory “note” focuses upon what matters, that is, workplace relations advocacy, not the studying of units in an academic institution. While Mr Ferguson may not have academic qualifications, he has significant representation and advocacy experience.

[24] Before concluding, it is notable that the Applicant’s submission did not particularly address the requirements of s.596(2)(c) of the FW Act. I do not intend to speculate on the reasons why the Applicant did not address this requirement, but the Employer’s submission was plain to read.

[25] Having been satisfied that the requirements in s.596(2)(c) of the FW Act have been met, it is not necessary to consider the remaining requirements in s.596(2)(a) and (b) of the FW Act.

CONCLUSION

[26] For the reasons set out above, I am satisfied that the requirement in s.596(2)(c) of the FW Act has been met. I am also satisfied, in the circumstances, that I should exercise my general discretion in s.596 of the FW Act, and give the Employer leave to be represented by a lawyer in the hearing on 13 April 2015.

COMMISSIONER

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