Tracey Dale v Queensland University of Technology
[2024] FWC 2982
•28 OCTOBER 2024
| [2024] FWC 2982 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365 - Application to deal with contraventions involving dismissal
Tracey Dale
v
Queensland University Of Technology
(C2024/5481)
| COMMISSIONER SIMPSON | BRISBANE, 28 OCTOBER 2024 |
Application to deal with contraventions involving dismissal - representation
On 7 August 2024, Ms Tracey Dale (the Applicant / Ms Dale) applied to the Fair Work Commission (the Commission) under s.365 of the Fair Work Act 2009 (the Act) for the Commission to deal with contraventions of general protections involving dismissal, alleging she was dismissed from her employment with the Queensland University of Technology (the Respondent / QUT) in contravention of her general protections arising under the Act.
The Respondent raised jurisdictional objections on their Form F8A Employer Response contending the Applicant was not an employee and was not dismissed.
The matter was originally listed for determinative hearing of the jurisdictional objections to be held on 27 September 2024. On 19 September 2024, a Form F53 Notice of Representation and the Respondent’s submissions on representation were filed with the Commission. On 23 September 2024, the Applicant raised an objection to the Respondent being represented. Later that day, the Respondent’s solicitors wrote to my chambers with the Applicant’s consent, initially to seek the hearing be vacated and replaced with a Member Assisted Conciliation. My chambers informed parties the jurisdictional objections prevented the Commission from convening a conciliation of the matter[1], however, parties were at liberty to attempt their own resolution. I therefore adjourned the hearing and relisted the determinative hearing to 30 October 2024 to allow the parties an opportunity to attempt a resolution themselves.
On 23 October 2024, the Respondent’s solicitors indicated the matter remained unresolved and the listed hearing was required. On 25 October 2024, the Applicant wrote to my chambers requesting, inter alia, an outcome on her objection to the Respondent’s request for leave to be represented by its solicitors.
Respondent Submissions
The Respondent made submissions under section 596(2) of the Act. In summary, its submission was that the Commission should exercise its discretion and grant permission for the Respondent to be legally represented because:
the matter is legally complex and legal representation would enable the proceedings to be carried out in an efficient manner;
the Respondent does not have the capacity to represent itself; and
it is in the interests of fairness for the Respondent to be legally represented.
Respondent’s submissions regarding efficiency and complexity
The Respondent submitted that if it were represented, it could better assist the Commission by having the Respondent’s position concisely outlined, and by keeping the matter on track and focussed on issues relevant to the Applicant’s application.
The Respondent cited The Police Federation of Australia (Victoria Police Branch) T/A The Police Association of Victoria v Victoria Police/Chief Commissioner of Police[2] in noting that complexity is not a precondition to granting permission, but must be considered. The Respondent then submitted the legal and factual complexities of the matter warranted the Respondent being represented to assist the Commission in dealing with the matter more efficiently, and outlined the ‘complex and interrelated matters’ in the Respondent’s view as follows:
whether Ms Dale was a contractor at law, including:
othe correct test to be applied, in circumstances where the engagement came to an end prior to the onset of the Fair Work Legislation Amendment (Closing Loopholes No.2) Act 2024 on 26 August 2024;
othe proper application of the 'start of relationship' test, by reference to the existing body of case law;
othe types of evidence relevant to an assessment of the 'start of relationship' test, including where the Applicant was asserting the parties’ contract was partly written and partly oral and that the parties’ subsequent conduct amounted to a waiver of the contract;
the number of witnesses sought to be compelled to provide evidence by the Applicant should the matter not conclude at hearing (and procedural matters relating to cross-examination of those witnesses);
the Applicant's intention to seek orders to produce, as foreshadowed in correspondence to the Commission; and
in the above circumstances, whether the Respondent dismissed the Applicant such that her current application was within the Commission’s jurisdiction.
The Respondent submitted that the Commission has previously stated in respect of section 596(2)(a) that the test is not whether a party can be effectively represented by an in-house advocate, but whether the matter would be dealt with more efficiently if permission to be represented by a lawyer was granted, taking in account the complexity of the matter.[3] The Respondent submitted that in making this determination, the Commission is not required to find that the matter is actually complex or is more complex than other matters.[4] The Respondent’s solicitors asserted they had experience in matters before the Commission involving jurisdictional objection, which would assist the Commission to ensure the matter will proceed more efficiently and that the hearing is confined to the relevant issues to be decided, whilst allowing the Applicant a fair opportunity to present her case.
The Respondent also cited Deputy President Sams’ previous statement:
"[18] I have found the skills and expertise of an experienced industrial legal practitioner will be more of a help than a hindrance, particularly bearing in mind a legal practitioner’s professional obligations to the Commission and the Courts."[5]
The Respondent submitted there is a recognised presumption that legal representatives will conduct themselves with probity, candour and honesty, and give close regard to the boundaries of the matters subject to the dispute5 and that there is therefore a better prospect of the case being run more efficiently and focused on the relevant issues to be determined if permission is granted. The Respondent submitted this matter involves issues of sufficient complexity, and legal representation would assist these being addressed more efficiently.
Respondent’s submissions regarding capacity to represent itself and fairness between parties
In relation to the ground that the Respondent did not have the capacity to represent itself, the Respondent submitted it did not have capacity to properly represent itself in the proceedings because while QUT engaged employees with human resources and industrial relations experience, it would be difficult for those persons to effectively represent the business even with experience in similar applications because of the legal complexity of the matter. The Respondent also submitted that its legally qualified employees are not experienced in conducting hearings in the Commission.
The Respondent cited Hopper v Goodyear and Dunlop Tyres (Australia) Pty Ltd[6] in submitting the mere fact a company has access to in-house counsel would not preclude it from being represented by outside lawyers, including in cases where the applicant is not represented.
The Respondent submitted the factual and legal complexity of the matter and the need for the issues in this matter to be managed efficiently warranted legal representation. The Respondent also submitted this is not a matter where it would be fair to require the Respondent to defend its position without specialist legal representation. The Respondent then submitted its retained lawyers are familiar with the relevant legislation and the case law in the area which would be of assistance to the Commission during the proceedings and that the involvement of external legal representatives in proceedings does not necessarily disadvantage the other party. It was submitted that it would be unfair for the Commission to deny the Respondent leave to be legally represented with consideration to fairness between parties.
Applicant’s Submissions
In response to the Respondent’s request for permission to be legally represented, the Applicant submitted that the Respondent had the capacity to represent itself effectively through its own in-house legally qualified employees, that granting legal representation would be unfair to the Applicant who is self-represented and lacked the legal resources available to the Respondent, and that the involvement of external legal representatives would disadvantage the Applicant to such an extent that any benefit to the Commission would be negligible.
Respondent’s submissions regarding efficiency and complexity
At the time of her submissions, the Applicant noted the Respondent’s request to be represented was lodged after substantive submissions had been lodged by parties and just five business days before the hearing.
The Applicant submitted that the Respondent’s request for legal representation is not necessary for ensuring the efficient handling of this matter and that the ‘normal position’ under the Act is that a party in a matter before the Fair Work Commission must normally appear on their own behalf.
The Applicant noted QUT’s current representative, Mr Green, is a senior workplace advisor with legal training and experience in industrial relations and had already demonstrated the capacity to represent QUT effectively such that the Applicant submitted there was no need for external legal representation to ensure efficiency.
The Applicant also submitted the legal and factual complexities raised by the Respondent were known to both parties when the initial submissions were lodged and that no new or additional complexities have emerged that would justify the need for external legal representation at this stage.
The Applicant additionally submitted the Respondent has already presented its position clearly and its current representative is capable of managing the proceedings.
At the time of her submissions on representation, the Applicant also submitted the Commission was still determining whether the matter should proceed to a conciliation and advisory conference under section 368 of the Act and that it was premature to involve external legal representation, including a special counsel, at this early stage.
Applicant’s submissions on Respondent’s capacity to represent itself effectively
With regard to the Respondent’s capacity to represent itself, the Applicant submitted the Respondent would be able to represent itself effectively in these proceedings and does not lack the capacity to represent itself, which in the Applicant’s view was evidenced by the comprehensive submissions the Respondent had already lodged without external legal assistance. The Applicant also submitted QUT is not hindered by any factors, such as language barriers or other vulnerabilities, that would necessitate external legal counsel and that QUT has internal resources and expertise that allow it to represent itself effectively without requiring external legal assistance.
Applicant’s submissions on witness orders and hearing procedure
The Applicant referred to her Form F51 applications filed on 9 September 2024 for the attendance of four witnesses, and quoted correspondence of 13 September 2024 from my chambers where I declined to issue orders for attendance at this stage, noting that it would be premature to do so prior to the hearing scheduled for 27 September 2024 as follows:
“The Commissioner stated that “having heard the evidence of Ms Dale and the submissions of the parties, the Commissioner will be in a better position to determine at that stage whether the matter can be determined without the need for further evidence, or whether he believes it will be necessary to make some or all of the orders for attendance to resolve the jurisdictional question.”
The Applicant submitted should I determine after the hearing (at the time, scheduled to take place on 27 September 2024) that the matter ‘cannot be resolved’, the applications for orders (Form 51) and scheduling of further dates for the filing of additional material could be dealt with then if required, and that both parties would have an opportunity at that stage to reassess the need for representation, if necessary.
Applicant’s submissions on fairness between the parties
The Applicant submitted granting legal representation to the Respondent would create an unfair imbalance between the parties.
The Applicant submitted she is a sole party, a social worker with no legal training or experience in industrial relations or matters in courts and tribunals, whereas QUT is a large institution with access to extensive legal resources and a qualified in-house representative.
She submitted allowing QUT legal representation would increase the already significant disparity in structural power, authority, and available resources between the parties.
She also submitted it would mean the Applicant would be self-represented while being forensically cross-examined by two experienced legal counsel in a jurisdiction not bound by the rules of evidence and procedure, and therefore would create an ‘unfair and powerful disadvantage’ against her.
She therefore submitted it would not be unfair to deny QUT legal representation because QUT is already well represented by Mr Green, who she considered would be fully capable of managing the proceedings, and that introducing external legal representation would serve no additional benefit to the fair conduct of the proceedings.
With regard to fairness, the Applicant finally submitted:
“The Commission is able to grant permission for representation where the person is unable to represent themselves in a manner that creates a ‘striking impression’, or which has an ‘impressive’ effect, or which is ‘powerful in effect’. Alternatively, in reverse, the Applicant seeks that the Commission NOT grant permission for legal representation - as to do so will have ‘powerful effect’ and create a ‘striking impression’ negatively for the Applicant.”
Consideration
The Commission only needs to find that one of the sub-sections in section 596(2) is satisfied to exercise the discretion to grant permission for a party to be represented. The satisfaction of one of these conditions is not determinative but enlivens the Commission’s discretion as to whether permission to be represented should be granted.[7]
This case involves a jurisdictional issue raising questions of fact and law and the matter does involve some complexity.
I refer to the decision of Deputy President Sams where it was said that in most cases of complexity, representation will be of assistance to the Commission.[8]
In considering whether a matter would be dealt with more efficiently should a legal representative be engaged, in ASC Pty Ltd v AWU, Deputy President Gostencnik observed that:[9]
“...the question, for the purposes of granting permission for the reasons set out in section 596(2)(a) of the Act, is not whether ASC can be represented or even effectively represented by in-house resources, rather the relevant question is whether, taking into account the complexity of the matter, the grant of permission to ASC to be represented by a lawyer (in this case one experienced in advocacy and industrial law) would enable the matter to be dealt with more efficiently. The in-house capacity of ASC has a bearing on that assessment but I am satisfied that in this case the grant of permission to ASC for external legal representation will have that result.”
I have considered the submissions of the Applicant including that it would be unfair for the Respondent to be granted leave given they are a large institution whereas the Applicant is self-represented. The legal representative has a duty to the Commission to assist it. The Commission is required to ensure the Applicant is not unfairly disadvantaged by the granting of leave to the other party.
I am satisfied the Respondent has met the requirement in section 596(2)(a) as I am satisfied having a legal representative involved in the case who is familiar with the relevant questions in a jurisdictional dispute of this nature will assist in the matter being conducted more efficiently than otherwise may be the case.
I am satisfied that the countervailing considerations that may tell against the grant of leave can be adequately managed, and in the exercise of my discretion I have determined to grant leave to the Respondent to be represented.
COMMISSIONER
[1] Coles v Milford [2020] FCAFC 152; Lipa Pharmaceuticals Ltd v Mariam Jarouche [2023] FWCFB 101.
[2] [2021] FWC 4582, at [12]–[13], and also cited Toby Artery v G Case & H Case T/A Gavin Case Marine Services [2021] FWC 4130 at [22]–[23] (Deputy President Easton).
[3] Dinov v ANZ Banking Group Ltd [2021] FWC 360 at [15].
[4] Toby Artery v G Case & H Case T/A Gavin Case Marine Services [2021] FWC 4130 at [19].
[5] Applicant v Respondent [2014] FWC 2860 at [18].
[6] [2010] FWA 2250 noting that the applicant in that case was represented in the conciliation but chose not to be represented in the arbitration.
[7] CEPU & Ors v Northern SEQ [2016] FWC 4736 at [13]-[14].
[8] Applicant v Respondent[2014] FWC 2860 at [20]; see also [2021] FWC 3178 at [34].
[9] [2014] FWC 544 at [16].
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