Susana Henderson v Northern NSW Rescue Helicopter Service Limited
[2022] FWC 2912
•1 NOVEMBER 2022
| [2022] FWC 2912 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Susana Henderson
v
Northern NSW Rescue Helicopter Service Limited
(U2022/5722)
| DEPUTY PRESIDENT SAUNDERS | NEWCASTLE, 1 NOVEMBER 2022 |
Permission for legal representation – s 596 of the Fair Work Act 2009 (Cth).
Ms Henderson alleges that she was unfairly dismissed by Northern NSW Rescue Helicopter Service Limited.
Commissioner Cambridge originally had carriage of the matter. On 16 August 2022, Commissioner Cambridge made a decision to refuse an application by the respondent for permission to be represented by a lawyer pursuant to s 596 of the Fair Work Act 2009 (Cth) (Act).[1] In considering the question of fairness under s 596(2)(c) of the Act, Commissioner Cambridge had regard to the fact that the applicant’s representative, Mr Stephens, a Senior Industrial Officer of the Australian Federation of Air Pilots (AFAP), “was not legally qualified although he was experienced in conducting proceedings before the Commission”.[2]
I now have carriage of the matter. It is listed for a three-day hearing before me on 7, 8 and 9 November 2022.
During a directions hearing on 26 October 2022, Mr Stephens informed the Fair Work Commission (Commission) that his colleague from the AFAP, Mr Marks, would “probably be the main advocate” for the applicant at the hearing.
By email received at 1:14pm on 26 October 2022, the respondent informed the Commission that:
“During the teleconference, the Applicant’s representative David Stephens advised that Jared Marks would be undertaking the advocacy in the matter at the hearing listed for 7-9 November 2022. We understand that Mr Marks is a legally qualified and admitted solicitor with over 10 years’ experience in employment law and conducting proceedings before the Commission. The Respondent was not previously aware that Mr Marks would be acting for the Applicant in this matter and had been of the understanding that Mr Stephens would appear at the hearing.
It is the Respondent’s view that this change in advocate is a material change to the circumstances in the matter that are relevant to whether permission to be represented may be granted by the Commission. The Respondent’s previous submissions before Commissioner Cambridge regarding section 596(2)(c) were on the basis that Mr Stephens was the advocate for the purpose of assessing fairness between the parties. In response, the Applicant relied on the fact Mr Stephens was not legally qualified, although experienced in conducting proceedings before the Commission, in support of there not being unfairness between the parties.
The change in advocate now gives rise to an imbalance whereby the Applicant is represented by the legally qualified, skilled and experienced lawyer Mr Marks, while the Respondent is relying upon its in-house HR and generalist legal team with no experience conducting workplace law litigation matters before the Commission.
This matter was not raised by the Respondent during the call as we needed to obtain legal advice regarding this new information and confirm that it had in fact not previously been communicated by the Applicant’s representative.”
I then made directions permitting each party to file and serve submissions in relation to the new application by the respondent for permission to be legally represented at the hearing pursuant to s 596(2)(c) of the Act. The respondent filed written submissions in chief on 27 October 2022 and written submissions in reply on 31 October 2022. The applicant filed written submissions on 28 October 2022. In addition, I gave each party an opportunity to make oral submissions in a short hearing, by telephone, on 1 November 2022. I have given consideration to all of those submissions in making my decision in relation to the new application by the respondent for permission to be legally represented at the hearing.
Material change in circumstances
I am satisfied that there has been a material change in circumstances since Commissioner Cambridge made his s 596 decision on 16 August 2022. That decision was made on the footing that Mr Stephens, a non-legally qualified industrial relations advocate, would be appearing for the applicant in the matter.
Notwithstanding the fact that Mr Stephens informed the Commission on 26 October 2022 that Mr Marks would “probably be the main advocate” for the applicant at the hearing, it is now apparent from information provided by Mr Stephens to the Commission in the hearing this morning that although Mr Stephens will be the primary or principal advocate for the applicant at the hearing, he will be assisted by Mr Marks, who is also attending the hearing. Mr Stephens informed the Commission that there is no plan at this stage for Mr Marks to do any of the advocacy at the hearing, but he could not say definitively that Mr Marks would not do any of the advocacy at the hearing for the applicant. Mr Marks is a legally qualified and admitted solicitor with considerable experience in employment law and conducting proceedings before the Commission.
The fact that Mr Marks is attending the hearing to assist Mr Stephens and potentially undertake some of the advocacy for the applicant is a material change to the circumstances that were known when Commissioner Cambridge made his s 596 decision on 16 August 2022. Accordingly, I am satisfied that, contrary to Mr Stephens’ submissions, the new application by the respondent for permission to be legally represented at the hearing is not an attempt to appeal Commissioner Cambridge’s decision.
Consideration of new s 596 application
I will now consider the respondent’s new application for permission pursuant to s 596(2)(c) of the Act.
The discretion to grant permission under s 596(2)(c) of the Act may be exercised if “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”.
The applicant is a member of the AFAP. She has a right to be represented by the AFAP at the hearing of her unfair dismissal application before the Commission. Any employee or officer of the AFAP, whether legally qualified or not, may appear for the applicant at the hearing without permission from the Commission (s 596(4) of the Act).
Notwithstanding that the AFAP is acting for the applicant in this matter and its employees, whether legally qualified or not, have a right to appear for the applicant at the hearing, the qualifications and experience of those employees is relevant to my assessment of fairness under s 596(2)(c) of the Act.
Both Mr Stephens and Mr Marks have considerable experience and expertise in workplace law and advocacy. Mr Stephens also has extensive experience in the aviation industry. They are well placed to represent the applicant effectively at the final hearing next week.
If permission is not granted to the respondent to be legally represented, the respondent will be represented at the hearing next week by Ms Razborsek, the respondent’s General Counsel & Company Secretary, assisted by Ms Williams, the respondent’s People, Capability and Strategy Manager. Ms Razborsek is a lawyer with about 24 years’ experience, including about five years as a Senior Associate with Sparke Helmore Lawyers and over five years as General Counsel with the respondent. It can be accepted that Ms Razborsek would have a thorough knowledge of the respondent’s policies and processes. However, neither Ms Razborsek nor any other employee of the respondent has ever appeared as an advocate in any contested final hearing before the Commission or in any other court or tribunal. Further, although the respondent has an in-house legal team, the members of that team, including Ms Razborsek, are generalist lawyers who are not experienced in workplace law litigation matters.
The respondent has been obtaining legal advice and assistance to prepare its witness statements and submissions in this matter. Those documents, like the material filed and served by the applicant, demonstrate a good understanding of the matters and principles which are relevant to an unfair dismissal application under the Act. However, the quality of the material filed by the respondent, with advice and assistance from external lawyers, does not necessarily reflect the quality of any advocacy which may be undertaken by persons without any experience in cross examining witnesses or making final submissions after a significant amount of evidence has been adduced.
A court book has been prepared in this matter. It comprises 1161 pages and occupies three A4 folders. Detailed submissions and witness statements have been filed and served by both parties. The hearing is expected to take three days. Many issues are in contest between the parties. They involve questions of fact and questions of law. It can reasonably be expected, according to the estimates provided by the parties and the significant number of facts in dispute, that major witnesses for each party would be cross examined by a competent advocate for a reasonably significant period of time. That is not to say that I expect the hearing to be “burdened by unnecessary formality”.[3] But the issues in dispute need to be examined in some detail, with relevant evidence tested, to enable the Commission to ensure that a “fair go all round” is accorded to both the applicant and the respondent (s 381(2) of the Act).
In my view, the significant difference in workplace law expertise and advocacy experience on the part of Mr Stephens, assisted by Mr Marks, on the one hand, compared to Ms Razborsek and Ms Williams (or any other employees of the respondent) on the other hand, is such that in the particular circumstances of this matter it would be unfair not to allow the respondent to be represented by a lawyer taking into account fairness between the respondent and the applicant.
I consider that it is appropriate in the circumstances of this case to exercise my discretion to grant permission to the respondent to be represented by a lawyer. The primary discretionary factors which weigh in support of a decision to grant permission to the respondent to be represented by a lawyer include the volume of material filed by the parties, the number of issues in dispute, the fact that the hearing has been listed for three days, the workplace law expertise and advocacy experience of Mr Stephens, assisted by Mr Marks, and the lack of workplace law expertise and advocacy experience of Ms Razborsek and Ms Williams (or any other employees of the respondent).
Conclusion
For the reasons given, permission is granted pursuant to s 596(2)(c) of the Act for the respondent to be represented by a lawyer in this matter.
DEPUTY PRESIDENT
Appearances:
Mr D Stephens, for the Applicant
Ms A Razborsek, for the Respondent
Hearing details:
2022
Newcastle (by telephone)
1 November 2022
[1] [2022] FWC 2157
[2] Ibid at [21]
[3] Warrell v Walton [2013] FCA 291 at [25]
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