Thaer Barkho v Dairy Country

[2015] FWC 8549

[2015] FWC 8549

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Thaer Barkho
v
Dairy Country
(U2015/2982)

COMMISSIONER RYAN MELBOURNE, 10 DECEMBER 2015

Application for relief from unfair dismissal - representation refused.

[1] The application in this matter was filed with the Commission on 10 February 2015.

[2] The application was listed for “Arbitration Conference/Hearing” before Hamilton DP on 17 and 18 November 2015. The Commission arranged for a Greek translator to attend the hearing. At the commencement of the hearing it became known that the Applicant had sought an Arabic translator as identified in his original application. The Applicant understood Greek to some degree and the hearing continued on the basis of the translator and the Applicant communicating in Greek.

[3] The Respondent had, prior to the hearing date, made a written application for permission to be represented by a lawyer or paid agent. During the hearing the Deputy President granted permission for the Respondent to be represented pursuant to s.596. The Respondent’s representative was Ms Sweet of counsel.

[4] The Applicant gave sworn evidence with his evidence in chief comprising adoption of his witness statement. The Applicant was subject to cross examination from Ms Sweet.

[5] After half an hour of cross examination of the Applicant, the Deputy President adjourned the proceedings to get an Arabic translator. Proceedings recommenced a half an hour later with an Arabic translator on a telephone connection. After a further 5 minutes the Deputy President adjourned the proceedings on the basis that an Arabic translator would need to be present in the court room and not at the end of a telephone connection. At the request of the Respondent, the Deputy President agreed to convene a conference of the parties to see if the matter could be resolved by agreement.

[6] The file in this matter was reallocated to me to arbitrate the application.

[7] I commenced to proceed to deal with the application as a new matter and not as a part heard matter. I had my Associate advise the Respondent that the question of permission to be represented would be determined by me. The Respondent was asked on 4 December 2015 to identify whether it relied on the material already filed by the Respondent or whether the Respondent wanted the opportunity to file any further material on representation.

[8] The Respondent’s lawyers replied to the Commission on 7 December 2015 as follows:

“We refer to your email below and the issue of leave to appear.

We attach transcript of these proceedings from the part day of hearing on 19 October 2015. As you will see at PN64 on page 7 of the transcript, leave for the Respondent to be represented by Counsel was granted by the Commission under s.596 of the Fair Work Act 2009 (Cth) for the purpose of these proceedings. 

The proceedings were adjourned part way through cross-examination of the Applicant for the purpose of arranging the in-person attendance of an Arabic interpreter for the Applicant, as one was not available on the day.  The hearing on 9 and 10 December 2015 is a continuation of that hearing, not a hearing de novo.  The Respondent's Counsel is in the middle of cross examination of the Applicant.

Once leave is granted for a purpose under s.596 of the Fair Work Act 2009 (Cth), there would appear to be no legislative basis under the Fair Work Act 2009 (Cth) to revoke that leave.  Further, there is no precedent which we can find whereby the Commission, having granted leave to appear for a purpose, has revoked leave to appear for that purpose.

Even if such a power was available to the Commission in principle, in these particular circumstances, there have not been any new facts or any changes in the parties' positions that would justify the grant of leave being reviewed.  Finally, revisiting the grant of leave to appear whilst Counsel is in the middle of cross-examination would be both prejudicial and a denial of procedural fairness to the Respondent.

If the Commissioner considers otherwise, then the Respondent relies upon its submissions as to leave to appear under s.596 of the Fair Work Act 2009 (Cth) and the affidavit of Michael Strong of the Respondent in support of those submissions, both of which have already been filed and served in these proceedings on 12 October 2015, and copies of which are attached.”

[9] By further email on 8 December 2015 the Respondent’s lawyers contended as follows:

“Although the hearing was adjourned part-heard on 19 October 2015, our client understands that the Commissioner may wish to hear the evidence in full personally, and that, in doing so, he may direct that the hearing commence from the beginning tomorrow morning given an Arabic interpreter will be on site. 

Further, although a hearing de novo as contemplated above would enable the Commissioner to revisit the issue of leave to appear, we would note that leave to appear was granted by a presidential member of the Commission on 19 October 2015, and that there has been no change in circumstances since leave was granted and the present.” 

[10] Two preliminary questions arise from the contentions of the Respondent. Firstly, is the matter to proceed before me on the basis that it is a part heard matter and that I continue from the point where the Deputy President ended? Secondly, does the decision of the Deputy President to grant permission to the Respondent to be represented by a lawyer or paid agent prevent me from revisiting that issue?

Part Heard or New Matter

[11] The proceedings before the Deputy President were significantly affected by the disadvantage of having the wrong language translator which meant that the Applicant was not able to express himself in his first language and where the Applicant was required to try to understand both what the Deputy President and Ms Sweet were putting to him in a language which was not his first language.

[12] The most that the transcript of proceedings on 17 November 2015 discloses is that the Deputy President abandoned proceedings on that day due to difficulties with translators and in fairness to the Applicant in proceeding without an Arabic translator present in the courtroom. It is tolerably clear that the Deputy President was abandoning the proceedings entirely and that any further proceedings would be before another Member and would start afresh. 1 As the Deputy President made clear, the file would “be given to the next roster”. That is clearly a reference to the unfair dismissal arbitration roster used by the Commission to ensure that Members are rostered in advance to deal with unfair dismissal arbitrations. The existence of the roster of Members means that the Unfair Dismissals Panel Head can allocate matters for arbitration well in advance knowing that Members will be available to deal with unfair dismissal arbitrations as they are allocated. The Deputy President was on the roster for the week including 17 and 18 November 2015 and he was not on the next unfair dismissal arbitration roster. The Deputy President intended that a new Member would deal with the application.

[13] The file was not allocated to me as a part heard matter, nor was the file subject to a s.621(2) allocation. It is proper in the circumstances of this matter for the Commission to start again in arbitrating the application. I note that if this matter had been allocated under s.621(2) of the Act I would have been required, pursuant to s.623, to “take into account everything that occurred before the FWC and everything that the FWC did in relation to the matter before” I began to deal with the matter. However, even so, it would still have been appropriate for the cross examination of the Applicant, which occurred using the Greek language, to be redone using the Arabic language.

[14] However, I am satisfied that the proper course in dealing with this application is to proceed on the basis that this is a new matter. All proceedings in this new matter will be conducted using an Arabic translator.

Revisiting Permission to be Represented

[15] The Respondent’s contentions raise a number of interesting issues. Firstly, that:

“Once leave is granted for a purpose under s.596 of the Fair Work Act 2009 (Cth), there would appear to be no legislative basis under the Fair Work Act 2009 (Cth) to revoke that leave. Further, there is no precedent which we can find whereby the Commission, having granted leave to appear for a purpose, has revoked leave to appear for that purpose.”

[16] The answer to this contention is very clear and simple. Section 603 of the Act provides a specific power to the Commission to vary or revoke certain decisions made under the Act. Section 603(3) prohibits the Commission from varying or revoking a range of specific decisions. A decision under s.596 to grant permission for a party to be represented is not a decision covered by s.603(3). Therefore a decision under s.596 may be varied or revoked by the Commission under s.603.

[17] The possible application of s.603 to revoke a decision to grant permission under s.596 was specifically identified by a Full Bench in Oratis v Melbourne Business School, 2 which was considering an appeal against the decision of a Member at first instance to grant permission for Melbourne Business School to be represented by a lawyer or paid agent in an unfair dismissal application where the applicant, Ms Oratis, was unrepresented. The decision to grant permission to be represented said in part:

“[20] I am satisfied that, given the complexity of the matter - caused in part by the extensive material sought to be relied on the by the Applicant - that the matter could be dealt with more efficiently if permission to be represented was granted to MBS. It should be noted that I do not consider that it would be unfair to MBS not to allow it to be represented.”

[18] The Full Bench in dismissing the appeal said, inter alia:

“[8] We note that Ms Oratis has submitted to us that "The information/material was provided in addition to the case materials and the Applicant will not be relying upon them in the court proceedings to prove the Unfair Dismissal case". That submission, however it is to be understood, was not made before the Commissioner, and cannot therefore be a proper basis to find appellable error. We reject the first ground of appeal. However, we observe that if, at the hearing of her unfair dismissal application, Ms Oratis makes it clear that she does not intend to rely on the material filed (or a substantial portion of it), it would be open to her to make an application under s.603 of the Act that the Commissioner's order granting permission for the MBS to be represented by a lawyer be revoked. The Commissioner could then consider that application based upon the facts applying at that time.”

[19] Secondly, the Respondent contended that:

“Even if such a power was available to the Commission in principle, in these particular circumstances, there have not been any new facts or any changes in the parties' positions that would justify the grant of leave being reviewed.”

And

“we would note that leave to appear was granted by a presidential member of the Commission on 19 October 2015, and that there has been no change in circumstances since leave was granted and the present.”

[20] The contention of the Respondent is that the decision of the Deputy President should continue unless there are “any new facts or any changes in the parties’ positions” or unless there has been a “change in circumstances”. This contention presupposes that absent such change that any other member dealing with the matter could not determine the issue of representation.

[21] The very fact that a decision made under s.596 is revocable under s.603 makes a nonsense of the Respondent’s contentions. For example, if the present matter had been allocated to me under s.621 and I was obliged to take into account everything that had occurred before the Deputy President, his decision under s.596 could be revisited under s.603.

[22] In the circumstances of the present matter, the matter is before me as a new matter and the question of whether the Respondent has permission to be represented by a lawyer or paid agent in this new matter is a question to be determined by the presiding member. Having said that, due regard should be given to the decision of the Deputy President to grant permission to the Respondent to be represented. The decision of the Deputy President and the reasons for his decision were as follows:

“I’ve read the submissions of the respondent. I grant permission to appear pursuant to section 596 of the Act on the basis this will assist the efficient conduct of these proceedings.” 3

[23] I intend to consider and determine the application by the Respondent for permission to be represented by a lawyer or paid agent in the matter before me.

Permission to be Represented

[24] Section 596 of the Act, which regulates when a party may be represented by a lawyer or paid agent in proceedings before the Commission, 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.”

Relevant case law

[25] The Federal Court decision in Warrell v Walton, 4 and the Full Bench decisions in King v Patrick Projects P/L5 and New South Wales Bar Association v McAuliffe,6 provide the necessary guidance to determining an application under s.596.

[26] The Respondent sought permission under each of s.596(2)(a), (b) and (c). The Respondent contended as follows:

“Section 596(2)(a): complexity/efficiency

6 The complexity of this case arises from:

(a) the significant evidentiary conflict regarding the validity of the reason for dismissal and whether the dismissal process was fair from a procedural perspective: Bertrand v Navatas Professional Institute Pty Ltd [2015] FWC 3147 at [15]; and

(b) the serious allegations by the Applicant that Dairy Country has put forward sham reasoning for his dismissal and has removed him from the organisation for ulterior reasons.

7 In-depth cross-examination of the Applicant regarding the following topics will be required:

(a) his role at Dairy Country, and any alleged changes to that role;

(b) his understanding of the relevant industrial instrument and his contract of employment;

(c) the work he performed at Dairy Country, including in the 12 months immediately prior to his dismissal;

(d) his willingness to follow directions and his views on what he can and cannot be asked to perform;

(e) ·the warnings given to him regarding his refusal to perform duties as directed; and

(f) the dismissal process.

8 The findings of fact with respect to these issues will be critical to the outcome of the hearing. The forensic running of this case can be most efficiently and effectively run with the presence of an experienced industrial legal practitioner who has professional obligations to the Fair Work Commission, particularly where one party is unrepresented: Bertrand v Navatas Professional Institute Pty Ltd, as above, [14], citing Applicant v Respondent [2014] FWC 2860 at [18] to [20] (DP Sams ).

Section 596(2)(b): effectiveness

9 The relevant test with respect to fairness pursuant to s.596(2}(b} requires an examination of the resources available to Dairy Country as a whole: King v Patrick Projects Pty Ltd [2015] FWCFB 2679 at [18]. If Dairy Country is not legally represented, the hearing will be conducted by its Human Resources Advisor, Michael Strong. Mr Strong does not have employment law expertise, has not previously run an unfair dismissal proceeding, and does not have other relevant industrial advocacy experience. Nor are there individuals within Dairy Country who have such experience and upon whom Mr Strong could draw: Bertrand v Navatas Professional Institute Pty Ltd, as above, [15].

10 Dairy Country and, in particular, its General Manager of Manufacturing, Souli Ktenidis, face serious allegations to the effect that they have concocted "sham" reasoning for the Applicant's dismissal. An individual with no industrial advocacy experience will not be able to represent Dairy Country and its representatives effectively, that is to say, will be unable to efficiently conduct its defence of the termination of the Applicant to powerful or robust effect without legal representation, in particular with respect to cross-examination of the Applicant and appropriately protecting its own witnesses when cross-examined by the Applicant: see Bertrand v Navatas Professional Institute Pty Ltd, as above, [16] to [19]. As a matter of fairness, Dairy Country ought to be permitted to have legal representation at hearing. See CEPU v UGL Resources Ply Limited (Project Aurora) [2012] FWA 2966 [16].

Section 596(2)(c): fairness

11 Given the complexity of the matter, and the seriousness of the allegations against Dairy Country and Mr Ktenidis, it would be a denial of procedural fairness to refuse Dairy Country's application to be represented. As to any alleged unfairness that this might create between the parties, if Dairy Country was represented and the Applicant was not, Dairy Country notes the comments of the Full Bench in Callychurn v Australia and New Zealand Banking Group t/a ANZ [2015] FWCFB 5254 at [17]:

‘(2) ... Given the professional duties which all legal practitioners must discharge, there is no reason to think that any unfair disadvantage would be taken of the fact that Ms Callychurn [the Applicant at first instance] is unrepresented. If any procedural unfairness arises because of the disparity in representation, or if Ms Callychurn has any difficulty in understanding any legal question which may arise, there would no doubt be an appropriate intervention from the bench.’”

Consideration

S.596(2)(a)

[27] The issues in dispute in this matter are far from complex. There is a factual dispute about the conduct of the Applicant. That issue is easily identifiable and has no level of complexity surrounding it.

[28] As a Full Bench said in King v Patrick Projects Pty Ltd: 7

“[15] The complexity of the subject matter of the proceedings is the key consideration under s.(596)(2)(a) of the Act. In Urbanski v MSS Security Pty Ltd it was found that, even if legal representation would enable a matter to be dealt with more efficiently, a lack of complexity in the matter may still mean that permission to appear is declined.” 

[29] Any consideration of the criteria in s.596(2)(a) cannot be limited solely to the issue of complexity. As a Full Bench noted in Singh v Metro Trains Melbourne 8:

“…(2) Ms Singh's contention that her case was not complex implicitly involved the proposition that a finding of complexity was necessary in order for the criterion in s.596(2)(a) to be satisfied. This is not the case. Certainly the provision requires the complexity of the matter to be taken into account. That means the consideration of complexity must be treated as a matter of significance in the process of determining whether the criterion is satisfied. But ultimately the issue under s.596(2)(a) is whether the grant of permission would enable the matter to be dealt with more efficiently. There will be circumstances where permission for legal representation may enable a matter to be dealt with more efficiently even though it is not particularly complex; for example, an appeal may be dealt with more efficiently by granting permission to allow the legal representatives who appeared in the matter at first instance to also appear in the appeal. Therefore the characterisation of a matter as not being complex does not itself necessarily mean that the s.596(2)(a) consideration is incapable of satisfaction.”

[30] The Respondent contends that there is a level of complexity associated with the “in depth cross examination of the Applicant”. However none of the issues which the Respondent identifies as requiring in depth cross examination raise any matter of complexity. Even if I was persuaded that there is some complexity in this case, there is nothing to suggest that a grant of permission to be represented would enable the matter to be dealt with more efficiently.

[31] The observation by Sams DP in Applicant v Respondent 9 that:

“[21] In my view, balancing fairness between parties is as much a case of courtroom management, as it is a case of legislative mandate. With the greatly increased exposure of all courts and tribunals to self-represented litigants, with all of the well known difficulties this brings, the appearance of a focused, experienced and sympathetic legal practitioner is, more often than not, a welcome relief.”

can be countered with the observation that the presence of lawyers and paid agents as representatives of a party in a proceeding before the Commission can and often leads to more protracted and complex hearings. Lawyers and paid agents will often cross examine for the sake of ensuring that they have covered every and any possible relevant issue so as comply with their obligation to their client.

[32] I have had regard to the decision and reasons for decision of Hamilton DP as identified at [22] above.

[33] I am not satisfied that a grant of permission for the Respondent to be represented would enable the matter to be dealt with more efficiently, taking into account the complexity of the matter.

S.596(2)(b)

[34] I accept that the relevant test is that laid down by the Full Bench in King v Patrick Projects Pty Ltd:

“[18] With respect to fairness pursuant to s.596(2)(b) of the Act, the relevant test is not an assessment of the skills and education of the individual employer representative (Mr Burton), but rather it involves an examination of the resources available to the Respondent as a whole. In this matter, the Respondent Patricks Projects is a large organisation with considerable resources at its disposal. Having regard to the internal legal, human resources and other specialist personnel available to the Respondent, we do not consider that it would be unfair not to allow the Respondent to be legally represented.

[19] Moreover, the onus is on the Respondent to show that it is unable to represent itself. There was no evidence before the Commissioner that the well-resourced employer enterprise, Patrick projects, was unable to represent itself in the substantive proceedings.”

[35] In the present matter the Respondent provided a witness statement from Mr Strong, the Respondent’s Human Resources Specialist who stated:

“3. I have no legal training or expertise and have never represented Dairy Country or any other employer in proceedings in the Fair Work Commission. I have no experience leading evidence from or cross examining witnesses.

4. The other senior managerial employee for Dairy Country is Mr Souli Ktenidis, General Manager of Manufacturing for Dairy Country. He is a witness in these proceedings. In any event, I am informed by him and readily believe that he also does not have any legal training, expertise or experience.

5. There is no other person within Dairy Country or the Hudson group of companies who can be drawn upon to appear on behalf of Dairy Country and lead evidence and cross examine witnesses inthese proceedings or to provide expert advice or guidance to me or Mr Ktenidis in respect of these matters.”

[36] In the context of the test laid down by the Full Bench in King v Patrick Projects Pty Ltd the qualifications and experience (or lack thereof) of Mr Strong, Mr Ktenidis or other persons within the Hudson group of companies is a relevant matter but not the only matter that needs to be considered.

[37] It is clear to date that the Respondent has available to it the resources of a legal team comprising both its solicitors, Thomson Geer, and counsel. The material filed by the Respondent in this matter including witness statements and outline of submissions shows that the Respondent is using the legal resources available to it.

[38] The relative simplicity of the factual issues in dispute and the comprehensiveness of the material filed by the Respondent is such that the Respondent can effectively represent itself in the hearing without the need for representation by a lawyer or paid agent.

[39] The Respondent contends that:

“An individual with no industrial advocacy experience will not be able to represent Dairy Country and its representatives effectively, that is to say, will be unable to efficiently conduct its defence of the termination of the Applicant to powerful or robust effect without legal representation, in particular with respect to cross-examination of the Applicant and appropriately protecting its own witnesses when cross-examined by the Applicant.”

[40] The Respondent’s use of the phrase “to powerful or robust effect” places a gloss on the concept of effective representation which is not warranted by the plain words of s.596. (I refer to my decisions in Chung v Spa Industries P/L, [2014] FWC 5141 and AMWU v Boeing Aerostructures Australia Pty Ltd, [2015] FWC 7600.)

[41] In the present matter where Mr Strong of the Respondent is a Human Resources Specialist there is nothing before the Commission which would suggest that Mr Strong could not effectively represent the Respondent where there is no bar against the Respondent’s legal team attending any hearing and sitting at the Bar table and providing running advice to Mr Strong. Equally there is nothing to suggest that Mr Strong could not effectively represent the Respondent in cross examination of the Applicant where the Respondent’s legal team brief Mr Strong on what questions to ask.

[42] The issue of permission to be represented has nothing to do with the ability of the Respondent to seek legal advice at any time including throughout the hearing. A refusal to grant permission to be represented can never be seen to act as a limitation on the right of the Respondent to seek and obtain legal advice. Nor does a refusal of permission to be represented prevent the Respondent from bringing its legal team to the hearing and having them sit at the Bar table or in the hearing room to give constant advice to the Respondent.

[43] I do not consider, in all of the circumstances of the matter, that the Respondent is unable to represent itself effectively, and I consider that no unfairness is visited upon the Respondent as a result of refusing to grant permission to the Respondent to be represented.

S.596(2)(c)

[44] The very specific language of s.596(2)(c) requires that the consideration of fairness is as between the party seeking permission to be represented and other parties in the same matter.

[45] In the present matter where the Respondent has a Human Resource Specialist in-house and has available to it a range of legal advisors and the Applicant is self-represented and acting through a translator it would appear that no unfairness could be visited upon the Respondent by refusing permission to be represented by a lawyer or paid agent.

[46] I do not consider, in all of the circumstances of the matter, that it would be unfair not to allow the Respondent to be represented taking into account fairness between the Respondent and the Applicant.

Conclusion

[47] The application by the Respondent for permission to be represented by a lawyer or paid agent is refused.

COMMISSIONER

 1   Transcript of proceedings at PN436.

 2   [2014] FWCFB 3869.

 3   Transcript at PN64.

 4 [2013] FCA 291.

 5   [2015] FWCFB 2679.

 6   [2014] FWCFB 1663.

 7   [2015] FWCFB 2679.

 8   [2015] FWCFB 3502 at [16].

 9   [2014] FWC 2860.

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