Susana Henderson v Northern NSW Rescue Helicopter Service Limited

[2022] FWC 2157

[2022] FWC 2157

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Susana Henderson
v

Northern NSW Rescue Helicopter Service Limited

(U2022/5722)

COMMISSIONER CAMBRIDGE SYDNEY, 16 AUGUST 2022

Termination of employment - representation by lawyers and paid agents.

[1]       This Decision involves an application for unfair dismissal remedy made pursuant to section 394 of the Fair Work Act 2009 (the Act). The application was made by Susana Henderson (the applicant). The respondent employer is Northern NSW Rescue Helicopter Services Limited (ABN 40 002 862 026) (the employer).

[2]       This Decision is made in respect to the discrete question as to whether the Fair Work Commission (the Commission) should grant permission for the employer to be represented by lawyers or paid agents (the representation question).

[3]       The application was filed on 25 May 2022, and the application document indicated that the applicant was represented by the Australian Federation of Air Pilots (AFAP). On 8 June 2022, Sparke Helmore Lawyers (Sparke Helmore) filed a “Form F3 – Employer response to unfair dismissal application” which indicated that Sparke Helmore acted for the employer.  The Commission has no record that Sparke Helmore has filed a “Form F53 - Notice that a person: (a) has a lawyer or paid agent; or (b) will seek permission for a lawyer or paid agent to participate in a conference or hearing”.

[4]       The matter was the subject of unsuccessful conciliation proceedings conducted on 24 June 2022, by a Commission staff Conciliator. A Pre-Hearing Conference/Conciliation was conducted on 20 July 2022, and conciliation was again unsuccessful in resolving the matter. During the Pre-Hearing Conference/Conciliation proceedings, Mr D Stephens from the AFAP who appeared for the applicant, advised that the applicant objected to the employer being granted permission to be represented by lawyers or paid agents. Consequently, the Commission issued Directions which firstly established a timetable for the Parties to file and serve submissions that each relied upon in respect to the contested representation question, and secondly, Directions were issued in respect to evidence and submissions for the substantive matter which has been scheduled for Hearing on 7, 8 and 9 November 2022.

[5]       In accordance with the Directions, the Parties have provided their respective submissions on the representation question. In a document dated 27 July 2022, Sparke Helmore Lawyers provided written submissions seeking permission to represent the employer. On 3 August 2022, the AFAP on behalf of the applicant, provided written submissions in opposition to the employer being granted permission to be represented by lawyers or paid agents.

[6]       The Commission has examined and considered the documentary material provided by the Parties in respect of the representation question. Particular regard and careful consideration has been provided for the submissions of Sparke Helmore Lawyers, which were made in support of permission being granted for the employer to be represented by lawyers or paid agents.

Consideration

[7]       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.”

[8]       The legislative intentions underpinning s. 596 of the Act have been the subject of various Decisions of the Commission and of Fair Work Australia. Further, the approach to consideration of the representation question has been examined by way of Judicial Review in the (incorrectly named) Judgment of Warrell v Walton[1] (Warrell) and it is relevant to note, in particular, paragraph 25 of that Judgment.

[9]       Subsection 596 (2) of the Act includes three factors 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/Conference of a claim for unfair dismissal. The three factors which can be identified in paragraphs (a), (b), and (c) of subsection 596 (2), can be paraphrased as: (a) complexity/efficiency; (b) inability/effectively; and (c) fairness.

[10]     In this case, Sparke Helmore Lawyers have submitted that those factors found in subsections 596 (2) (a), (b), and (c) of the Act, respectively involving, complexity/efficiency, inability/effectively, and fairness, operated separately and in combination, to provide basis for the Commission to grant permission for the employer to be represented by lawyers. In particular, the submissions made on behalf of the employer emphasised that, given the nature of the matters in dispute, the duration of the arbitration Hearing, and the legal arguments to be addressed, there would not be any unnecessary formality created if the employer was granted permission to be legally represented.

[11]     Conversely, the AFAP on behalf of the applicant, submitted that none of the provisions of subsection 596 (2) of the Act operated to provide for the Commission to exercise the discretion to grant permission for the employer to be represented by lawyers. In particular, the AFAP submitted that the employer’s desire to be represented externally was more a matter of mere convenience, and not based upon any compelling grounds which would displace the fundamental legislative position whereby Parties would not ordinarily be permitted external representation.

Complexity/Efficiency - Subsection 596 (2) (a)

[12]     The submissions made in support of permission being granted for the employer to have representation asserted that the matter involved a number of factual and legal complexities which related to inter alia, the comprehensive training and competency requirements for a rescue helicopter pilot, the application of the employer’s operations manual, the nature and extent of the applicant’s competency/performance issues, significant factual disputes, and aspects of any remedy involving reinstatement. It was submitted that these identified complexities would be dealt with more efficiently with the involvement of legal representatives to assist with inter alia, the high volume of evidence, the time taken with evidence to be provided by numerous witnesses, and summarising relevant evidence and focusing relevant submissions.

[13]     The AFAP on behalf of the applicant submitted that the matter did not involve significant complexity of argument (legal or otherwise) which was not beyond the purview, knowledge, or skill of the employer’s own human resources and operational professionals of its in-house legal department. The AFAP submitted that the primary legislative intent was for Parties to not be legally represented in proceedings before the Commission. Further, the AFAP submitted that the Commission regularly dealt with various statutory and common law principles relevant to the employment relationship, and frequently this involved managing voluminous or even extraneous materials/issues introduced during the course of any unfair dismissal proceedings.

[14]     Upon examination of all of the material and submissions which has been filed and having consideration of any contests that may arise from that material, it is clear that the matter will involve the examination of a significant amount of material relevant to the stringent requirements for training and competency assessment of the safety critical role of rescue helicopter pilots. Although there may be some level of complexity associated with these aviation safety issues, and notwithstanding the volume of the material that is anticipated, the identified issues are matters of a nature and extent that may, from time to time, arise in unfair dismissal matters which involve what might be described as highly skilled professionals.

[15]     Consequently, although the Commission generally recognises and appreciates the assistance that lawyers might provide, and which ordinarily would enable the matter to be dealt with more efficiently, the prospect of such assistance being provided by external legal representatives should be contemplated in cases where significant complexity can be identified, and where such complexity would involve examination of issues that would not ordinarily be encountered in an unfair dismissal case. In this instance, the issues identified for examination are, in terms of volume and complexity, issues that broadly have no greater complexity than would be regularly encountered in unfair dismissal matters which involve highly skilled professionals. 

Inability/Effectively - Subsection 596 (2) (b)

[16]     The submissions for the employer asserted that if permission was not granted it would be unfair because it would mean that the employer would be unable to represent itself effectively because the employer’s in-house legal team included generalist lawyers who did not have experience in workplace law litigation. Further, it was submitted that the employer’s inability to effectively represent itself would be caused by the employer’s Human Resources Business Partner, Ms O’Grady, being called as a witness in the proceedings and therefore the conduct of the matter before the Commission would be undertaken by Ms Williams, who had no specialist experience in conducting arbitrated matters before the Commission. In these circumstances, the case would be conducted by someone who was not experienced in the presentation of the defence of an unfair dismissal matter before the Commission.

[17]     The AFAP submitted that the employer had acknowledged that it has at its disposal the legal skills and expertise of an in-house legal department. Consequently, according to the submissions made by the AFAP, the employer did not assert a lack or absence of individuals that could represent it effectively, but rather it asserted that external lawyers represented a choice, or preference, or convenience. The AFAP submitted that these circumstances did not involve a case of where if external representation was not granted, the employer would have no capacity to represent itself effectively.

[18]     Upon examination of the submissions made on this point, the Commission recognises that the employer may understandably have some difficulties representing itself without assistance from external lawyers. However, in circumstances where the employer has an in-house legal team, albeit not necessarily experienced or specialist in employment related matters, there is no identifiable basis to establish that it could not effectively represent itself without the engagement of external lawyers.

Fairness - Subsection 596 (2) (c)

[19]     The issue of fairness between the Parties is a matter of recognised significance. In this instance, both Parties have made submissions which have addressed the question of fairness.

[20]     It was submitted that unfairness would arise if the employer was denied an opportunity to be represented by external lawyers. The submissions made by Sparke Helmore Lawyers on behalf of the employer, asserted that an imbalance would arise because the applicant was represented by an experienced industrial relations advocate from the AFAP, while, in the absence of external lawyers, the employer would not be able to utilise an advocate who was experienced in running an arbitrated case before the Commission.

[21]     The AFAP on behalf of the applicant, submitted that there would not be any unfairness created if the employer was not granted permission to be represented by external lawyers. In this regard, it was noted that the applicant’s advocate, Mr Stevens from the AFAP, was not legally qualified although he was experienced in conducting proceedings before the Commission. The AFAP submitted that the employer had significant legal and operational expertise at its disposal, and the applicant was being represented by a registered organisation which was a representative arrangement that was clearly contemplated by the provisions of s. 596 of the Act.

[22]     In this instance, if permission for external legal representation for the employer was granted, when it had access to its own significant resources and expertise in its in-house legal team, the configuration of the representation of the respective Parties that would be created would appear to encourage the engagement of external legal representatives. Such encouragement would be clearly contrary to the established legislative intentions of s. 596 of the Act, and importantly, no unfairness has been established if the employer was required to utilise its own resources rather than engage external legal representation.

[23]     In this instance, the determination of the representation question has been influenced by the particular factors regarding fairness between the Parties, and the requirement for informality, as was recognised by his Honour in the Warrell Judgment; “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.”[2] 

[24]     In the present circumstances, applying in particular, the reasoning contained in the Judgment in the Warrell case, unnecessary formality would be created by granting permission for the employer to be represented by external legal representatives. In circumstances where complexity has not been established, and there is no basis to conclude that the employer could not represent itself effectively through its own in-house legal team and other resources, if permission for the employer to engage external legal representatives was granted, an outcome would emerge which would encourage external legal representation. Such an outcome would clearly be contrary to the legislative intentions that have been identified to underpin s. 596 of the Act. Further, the configuration of the representation of the Parties whereby one side is represented by a registered organisation and the other side utilises its in-house legal team, would be an arrangement that sits comfortably with the provisions of s. 596 of the Act. Therefore, the fairness criterion has supported a representational configuration that excludes external legal representatives and has provided further support against the granting of permission.

[25]     In view of the conclusions that the Commission has 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 lawyers or paid agents is refused.

COMMISSIONER

[1]     Warrell v Walton [2013] FCA 291.

[2] Ibid @ paragraph 25.

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