Valeria Elliott v Nelson & Robertson Exports Pty Ltd

[2021] FWC 5189

[2021] FWC 5189

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Valeria Elliott
v
Nelson & Robertson Exports Pty Ltd
(U2021/2227)

COMMISSIONER CAMBRIDGE SYDNEY, 27 AUGUST 2021

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 Valeria Elliot (the applicant). The respondent employer is Nelson & Robertson Exports Pty Ltd (ABN 77 002 158 787) (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 17 March 2021, and the application document indicated that the applicant was not represented. On 31 March 2021, the employer filed a Form F3 - Employer response to unfair dismissal application. The Form F3 indicated that the employer was not represented by lawyers or paid agents, and its Director, Mr Robert John Laurie was appearing for the employer. The matter was the subject of unsuccessful conciliation conducted on 20 April 2021.

[4] On 28 June 2021, a Pre-Hearing Conference/Conciliation was conducted by the Commission via telephone conference. During the Pre-Hearing Conference/Conciliation Mr H Wrench solicitor from Carneys Lawyers appeared for the employer. The applicant, who was unrepresented, indicated that she opposed permission being granted for the employer to be represented by lawyers or paid agents. The Commission issued Directions which established a timetable for the Parties to file and serve all evidence and submissions that each relied upon in respect to the substantive matter. Further, in the event that the employer decided to have lawyers or paid agents formally appear in the matter, it was required to file and serve a Form F53 - Notice of Representative Commencing to Act, together with submissions to support any request for permission to be represented by lawyers or paid agents within 7 days.

[5] In accordance with the Directions, the applicant provided her evidence and submissions on the substantive matter on 19 July 2021. In a document dated 6 August 2021, Carneys Lawyers provided written submissions seeking permission to represent the employer. There has been no Form F53 - Notice of Representative Commencing to Act filed on behalf of the employer despite Carneys Lawyers having “been involved in this matter from its commencement.” 1 On 20 August 2021, the applicant provided written submissions outlining the basis for her opposition to the employer being granted permission to be represented by lawyers or paid agents.

[6] I have examined and considered the documentary material provided by the Parties in respect of the representation question. In particular, I have carefully considered the submissions in support of permission being granted made on 6 August 2021, by Carneys Lawyers as the basis for this Decision.

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 2 (Warrell) and it is relevant to note, in particular, paragraph 25 of that Judgment.

[9] It is also relevant to note that the operation of s. 596 of the Act has been the subject of more recent examination by a Full Bench Decision in the case of Fitzgerald v Woolworths Limited  3 (Fitzgerald). The Full Bench Decision in Fitzgerald has established, inter alia, particular practical consequences that have application in circumstances where permission for a Party to be represented by lawyers or paid agents is refused, or where lawyers or paid agents undertake a representative role without first obtaining the permission of the Commission.

[10] 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.

[11] In this case, Carneys Lawyers have made written submissions which asserted that those factors found in subsections 596 (2) (a) and (b) of the Act, respectively involving, complexity/efficiency, and inability/effectively, operated to provide basis for the Commission to grant permission for the employer to be represented by paid agents. In particular, the submissions made on behalf of the employer emphasised that there was complexity arising from; (a) dispute as to the fundamental terms of the applicant’s employment concerning the amount she was entitled to be paid and her level of delegated authority, (b) serious allegations concerning the applicant’s alleged overpayment to herself which were the subject of District Court proceedings, and (c) the employer requiring the Commission to examine a large number of accounting and business records.

[12] Conversely, the applicant objected to the employer being granted permission for representation particularly because the employer’s Director, Mr Laurie was a solicitor and that the matter lacked the required complexity. The applicant also asserted that she would be placed at a significant disadvantage if the employer was represented by lawyers or paid agents.

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

[13] The submissions made in support of permission being granted for the employer to have representation asserted that the matter involved complexity because of; (a) dispute as to the fundamental terms of the applicant’s employment concerning the amount she was entitled to be paid and her level of delegated authority, (b) serious allegations concerning the applicant’s alleged overpayment to herself which were the subject of District Court proceedings, and (c) the employer requiring the Commission to examine a large number of accounting and business records. It was submitted that these identified complexities would be dealt with more efficiently with the involvement of lawyers.

[14] Upon examination of all of the material which has been filed, and a consideration of any contests that may arise from it, it is clear that the matter is not complex. An analysis of the terms of the employment included the level of delegated authority which are connected with serious reasons for the dismissal, and the requirement for examination of accounting and business records, are issues that regularly arise in unfair dismissal arbitrations.

[15] Consequently, although the Commission generally recognises and appreciates the assistance that a lawyer might provide, and which ordinarily would enable the matter to be dealt with more efficiently, the prospect of such assistance should be contemplated in cases where clear complexity can be identified. This is not the case in this instance.

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

[16] The submissions for the employer asserted that if permission was not granted, its sole Director, Mr Laurie, would be required to provide evidence and also conduct the case for the employer. Further, it was submitted that Mr Laurie was a semi-retired solicitor with very limited experience of litigation, and because he was presently engaged in District Court proceedings against the applicant, it would be unfair to burden Mr Laurie with the conduct of a complex hearing without the assistance of a legal representative. In these circumstances, it was asserted that “the Commission is empowered pursuant to s 596 (2) (b) to grant permission to the respondent to be legally represented.” 4

[17] The submissions made by the applicant challenged the asserted inability of the employer to effectively represent itself in the absence of lawyers or paid agents. The applicant submitted that the employer’s sole Director, Mr Laurie was a solicitor that had a better understanding of the law than she had, and he had the capability to conduct the case on behalf of the employer.

[18] Upon examination of the submissions made on this point, I recognise that the employer may understandably have some difficulties if its sole Director, Mr Laurie, was required to provide evidence and also conduct the case for the employer. However, this position, and the difficulties associated with being both a witness and advocate would also be experienced by an unrepresented applicant.

Fairness - Subsection 596 (2) (c)

[19] The issue of fairness between the Parties is a matter of recognised significance. In this instance, the submissions made on behalf of the employer were not framed under subsection 596 (2) (c) of the Act. However, it was asserted that it would be unfair to the employer if it was not allowed to be represented.

[20] The applicant submitted that she would be at a significant disadvantage if the employer was granted permission to be represented by lawyers or paid agents.

[21] In this instance, if permission for the employer to be represented was granted, there would appear to be a significant imbalance created because the applicant would be representing herself while the employer obtained the assistance of external representation.

[22] In this instance, the determination of the representation question has been strongly 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.” 5

[23] In the present circumstances, applying in particular, the reasoning contained in the Judgment in the Warrell case, unnecessary formality would be created by the granting of permission for the employer to be represented. Further, a manifest unfairness between the respective Parties would emerge if permission was granted and an imbalance created between an unrepresented applicant against the employer’s external representatives. The resultant imbalance created by the appearance of more advantageous representation of the employer against the applicant should be avoided, particularly in circumstances where complexity has not been established. Therefore, the fairness criterion has, in this instance, operated strongly against the granting of permission.

[24] 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

Printed by authority of the Commonwealth Government Printer

<PR733049>

 1   Submissions of respondent – permission to appear, dated 6 August 2021, @ paragraph 7.

 2 Warrell v Walton [2013] FCA 291.

 3   Stephen Fitzgerald v Woolworths Limited [2017] FWCFB 2797.

 4   Submissions of respondent – permission to appear, dated 6 August 2021, @ paragraph 11.

 5   Stephen Fitzgerald v Woolworths Limited [2017] FWCFB 2797 @ paragraph 25.