Urush Riaz v BlueScope Steel Limited
[2024] FWC 1163
•3 MAY 2024
| [2024] FWC 1163 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365—General protections
Urush Riaz
v
BlueScope Steel Limited
(C2024/686)
| COMMISSIONER MATHESON | SYDNEY, 3 MAY 2024 |
Application to deal with contraventions involving dismissal – jurisdictional objection – section 596 representation by lawyers and paid agents – permission granted
Mr Urush Riaz (Applicant) has made a general protections application involving dismissal under s.365 of the Fair Work Act 2009 (Cth)(Act).
BlueScope Steel Limited (Respondent) is the Respondent to the application and has raised a jurisdictional objection to the application, submitting that the Applicant has not been dismissed.
The matter will be the subject of a hearing on 6 May 2024 in relation to the jurisdictional objection. The Respondent is seeking permission to be represented by a lawyer. The Applicant objects to representation. Both parties have filed written submissions in relation to the question of whether permission should be granted and consented to the Commission deciding this question on the papers.
Legislation
Determination of the question of representation requires consideration of s.596 of the Act, which 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.”
Respondent’s submissions
The Respondent submitted that representation should be granted on the grounds that:
(a)it will enable the matter to be conducted more efficiently taking into account the complexity of the matter (s.596(2)(a));
(b)the Respondent will otherwise be unable to represent itself effectively (s.596(2)(b));
(c)there is no unfairness as between the parties (s.596(2)(c).[1]
By way of summary, in relation to s.596(2)(a) of the Act the Respondent submitted:
The substance of the matter, at this stage, relates to the jurisdictional issue of whether or not the Applicant was dismissed.[2]
Such jurisdictional issues have an inherent complexity and require appropriate consideration of accepted principles outlined in case law and the application of facts against that case law.[3]
The Commission will be able to deal with the matter more efficiently if the Respondent were legally represented, given the representatives can be expected to:
omarshal relevant factual material and present this in a logical and ordered manner;
oset out relevant facts and law to assist the Commission in making its decision;
oensure the conduct of the hearing is confined to the relevant matters, which is particularly important given the confined nature of the proceedings at this stage.[4]
The matter is of sufficient complexity that, in the interests of efficiency, permission should be granted.[5]
In relation to s.596(2)(b) of the Act the Respondent submitted:
Given the complex nature of the questions of law that are required to be considered in relation to the jurisdictional objection, it is not appropriate for the Respondent to represent itself as it does not have internal resources who are experienced in advocacy concerning such issues.[6]
An experienced representative would be better placed than a representative of the Respondent to facilitate the effective conduct of the matter in these circumstances.[7]
In relation to s.596(2)(c) of the Act the Respondent submitted:
There is no unfairness as between the parties.[8]
While the Applicant is unrepresented such a circumstance, in and of itself, should not be seen as a barrier to the Respondent being granted permission to be legally represented.[9]
The Respondent’s representatives are officers of the Court and have a duty to the Commission to ensure the effective and efficient administration of justice in the matter.[10]
On a comparative basis, no prejudice warranting refusal of the Respondent’s request to be legally represented arises.[11]
Applicant’s submissions
The Applicant submitted in opposition that permission should not be granted on the basis that:
· the Respondent is a sizeable business with a substantially resourced human resources department and a dedicated legal team which puts the Respondent in a position to be able to represent itself efficiently;[12]
· the level of advocacy experience of the Respondent is not a relevant consideration under s.596 of the Act and would not impact the Respondent’ ability to represent itself;[13]
· if the Respondent were granted permission to be represented by a lawyer it would create a further “gulf” between the parties in terms of resourcing, technical knowledge, experience and formal qualifications.[14]
The Applicant sought to rely on the finding of Commissioner Steel in Bowley v Trimatic Management Services Pty Ltd T/A TSA Telco Group[15] concerning a company with 1180 employees and a dedicated human resources department:
“Further, there is sufficient period before the arbitral proceedings for such representation to be organised or arranged.”[16]
“…In these circumstances the Commission cannot identify an unfairness to the respondent in not being represented. It may be inconvenient to them and not their preference, however the Commission must have regard to considerations of efficiency and fairness as above.”[17]
The Applicant also made reference to Hamilton v Carter Holt Harvey Wood Products Australia Pty Ltd (Hamilton) in which Mr Hamilton was represented by the Australian Manufacturing Workers’ Union and opposed the respondent being represented by a lawyer. Deputy President Bartel dismissed the respondent’s application for permission to be represented by a lawyer. The Applicant submitted that Hamilton involved a large employer who argued that their in-house counsel was inexperienced in unfair dismissal arbitration matters compared to the applicant’s union advocate.[18]
Consideration
A decision to grant or refuse permission for a party to be represented by a lawyer pursuant to s.596 cannot be characterised as a mere procedural decision.[19]Permission may be granted only if one or other of the requirements in s.596(2) is satisfied.[20]This is the condition precedent to the subsequent exercise of the discretion conferred by s.596(2).[21]
As noted above, the Respondent has raised a jurisdictional objection to the application, submitting that the Applicant has not been dismissed.
In Communications, Electrical, Electronic, Energy, Information. Postal, Plumbing and Allied Service Union of Australia v UGL Resources Pty Limited (Project Aurora) Senior Deputy President Richards observed that “…Jurisdictional issues by their nature are prospectively complex in their own right, and/or else may require a degree of familiarity with court and tribunal jurisprudence or authorities”.[22]
In Patterson v Re-Engage Youth Services Incorporated T/A Re-EngageYouth Services[23] Deputy President Anderson said:
“[27] I accept that an application which raises a jurisdictional issue (such as whether the applicant was dismissed) involves an additional degree of complexity. Even where facts associated with a jurisdictional issue are simple, determining that question is a legal matter. Whether an employee’s resignation was, at law, a dismissal is sometimes a very fine judgment. Narrow though it may be, that line must be closely drawn and rigorously observed.[24] That can be a difficult exercise applying facts (even simple facts) to the law. In this context I agree with the general observation of the Commission in CEPU v UGL Resources Pty Ltd where it was said:
“...where the Respondent (in this case) seeks to agitate a jurisdictional issue then it would follow that representation by a lawyer would be a reasonable course. Jurisdictional issues by their nature are prospectively complex in their own right, and/or else may require a degree of familiarity with court and tribunal jurisprudence or authorities.”[25]
[28] Accordingly, the fact that a jurisdictional issue requires determination in this matter is a factor which weighs in favour of granting permission, particularly in the context of section 596(2)(a) considerations.”
The Applicant has raised a number of concerns about matters and events arising during his employment and alleges that “Despite offering a commitment to see out the task to its completion, and stating [he] would like to discuss, [he] was deemed to have resigned” and alleges he was dismissed from his employment on 16 January 2024. At item 3.1 of his application the Applicant states “Stated I resigned when I believe I clearly gave indications I did not want to”, which suggests he may be inferring constructive dismissal. The Respondent submits that the Applicant resigned and relies on, among other things, text message communications sent by the Applicant in support of this proposition.
I agree with the observation of Deputy President Anderson that whether an employee’s resignation was, at law, a dismissal is sometimes a very fine judgment.[26] I am satisfied that complexity arises in relation to the matter in relation to both the factual issues in dispute and the nature of the jurisdictional objection raised in relation to the application which necessitates consideration of the appropriate legal principles as set out in case law and consideration of the facts in the context of that law.
In Applicant v Respondent Deputy President Sams observed that he had found the skills and expertise of an experienced legal practitioner to be more of a help than a hindrance, particularly bearing in mind a legal practitioner’s professional obligations to the Commission and Courts.[27]Deputy President Sams went on to state in that matter that he was satisfied that the matter was of sufficient complexity that it would be dealt with more efficiently if the respondent was represented and that the applicant in that matter would also be assisted by having an experienced person on the other side who could focus on the relevant issues which they needed to bring to the Commission’s attention.[28]
While the Applicant is self-represented, given the nature of the factual and legal issues in dispute I am satisfied that complexity arises in relation to the matter and that it will be dealt with more efficiently with the assistance of a legal practitioner, with professional obligations to the Commission and who can direct focus toward the relevant issues that the Commission needs to take into consideration.
Conclusion
I am satisfied that granting permission for the Respondent to be represented by a lawyer would enable the matter to be dealt with more efficiently, taking into account the complexity of the matter. Having found that the requirements of s.596(2)(a) of the Act have been met and having regard to the matters above, I exercise my discretion and grant the Respondent permission to be Represented by a lawyer pursuant to s.596(2) of the Act.
COMMISSIONER
[1] Respondent’s Outline of Submissions: Permission to be represented by a lawyer, para 1.2.
[2] Respondent’s Outline of Submissions: Permission to be represented by a lawyer, para 2.4.
[3] Respondent’s Outline of Submissions: Permission to be represented by a lawyer, para 2.5.
[4] Respondent’s Outline of Submissions: Permission to be represented by a lawyer, para 2.6.
[5] Respondent’s Outline of Submissions: Permission to be represented by a lawyer, para 2.7.
[6] Respondent’s Outline of Submissions: Permission to be represented by a lawyer, para 3.2.
[7] Respondent’s Outline of Submissions: Permission to be represented by a lawyer, para 3.3.
[8] Respondent’s Outline of Submissions: Permission to be represented by a lawyer, para 4.1.
[9] Respondent’s Outline of Submissions: Permission to be represented by a lawyer, para 4.2.
[10] Respondent’s Outline of Submissions: Permission to be represented by a lawyer, para 4.3.
[11] Respondent’s Outline of Submissions: Permission to be represented by a lawyer, para 4.4.
[12] Applicant’s Outline of Submissions: Permission to be represented by a lawyer, page 1.
[13] Applicant’s Outline of Submissions: Permission to be represented by a lawyer, page 1.
[14] Applicant’s Outline of Submissions: Permission to be represented by a lawyer, page 2.
[15] [2013] FWC 1320.
[16] Bowley v Trimatic Management Services Pty Ltd T/A TSA Telco Group[2013] FWC 1320 at [12].
[17] Ibid at [13].
[18] Applicant’s Outline of Submissions: Permission to be represented by a lawyer, page 2.
[19] Warrell v Walton [2013] FCA 291 at [24].
[20] Warrell v Walton [2013] FCA 291 at [24].
[21] Warrell v Walton [2013] FCA 291 at [24].
[22] [2012] FWA 2966 at [23].
[23] [2017] FWC 5459.
[24] ABB Engineering Construction Pty Ltd v Doumitt PN6999.
[25] [2012] FWA 2966 at [23].
[26] [2017] FWC 5459 at [27].
[27] [2014] FWC 2860 at [18].
[28] [2014] FWC 2860 at [27].
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