Voula Antoniou v Emirates Airline T/A Emirates

[2016] FWC 2616

[2016] FWC 2616

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Voula Antoniou
v
Emirates Airline T/A Emirates
(U2016/3522)

COMMISSIONER BISSETT MELBOURNE, 27 APRIL 2016

Alleged dispute about any matters arising under an enterprise agreement - permission to be represented - permission granted.

[1] Ms Voula Antoniou has made an application for relief from unfair dismissal pursuant to s.394 of the Fair Work Act 2009 (the Act). She was employed by Emirates Airline T/A Emirates (Emirates). The application is listed for arbitration on Monday 2 May 2016.

[2] Both parties seek permission to be represented by a lawyer or paid agent in the hearing of the application.

Legislation and approach to the question

[3] Section 596 of the Fair Work Act 2009 (the Act) deals with when permission may be given for a party to be represented by a lawyer or paid agent in matter before the Commission. It states:

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.

[4] It is well established that in order to exercise the discretion available to the Commission to grant permission to be represented one of the conditions in s.596(2) of the Act must first be met. Such a condition having been met does not make representation automatic. This remains at the discretion of the Commission.

[5] A Full Bench of the Commission confirmed this approach in Oratis v Melbourne Business School 1where it said:

[3] The proper approach to the application of s.596 was discussed as follows by the Federal Court (Flick J) in Warrell v Walton (followed by a Full Bench of this Commission in New South Wales Bar Association v Brett McAuliffe):

“[24] A decision to grant or refuse “permission” for a party to be represented by “a lawyer” pursuant to s 596 cannot be properly characterised as a mere procedural decision. It is a decision which may fundamentally change the dynamics and manner in which a hearing is conducted. It is apparent from the very terms of s 596 that a party “in a matter before FWA” must normally appear on his own behalf. That normal position may only be departed from where an application for permission has been made and resolved in accordance with law, namely where only one or other of the requirements imposed by s 596(2) have been taken into account and considered. The constraints imposed by s 596(2) upon the discretionary power to grant permission reinforce the legislative intent that the granting of permission is far from a mere “formal” act to be acceded to upon the mere making of a request. Even if a request for representation is made, permission may be granted “only if” one or other of the requirements in s 596(2) is satisfied. Even if one or other of those requirements is satisfied, the satisfaction of any requirement is but the condition precedent to the subsequence exercise of the discretion conferred by s 596(2): i.e., “FWA may grant permission...”. The satisfaction of any of the requirements set forth in s 596(2)(a) to (c) thus need not of itself dictate that the discretion is automatically to be exercised in favour of granting “permission”.”

...

[5] It is apparent from the above reasoning that the Commissioner understood and applied the correct approach to s.596 as stated in Warrell v Walton, namely that in order for permission for representation to be granted under the section, it was necessary first to be satisfied that at least one of the three alternative jurisdictional prerequisites in s.596(2) applied, and second to exercise the statutory discretion in favour of the grant of permission. It is further apparent that the Commissioner was satisfied that the jurisdictional prerequisite in s.596(2)(a) applied.

Submissions

[6] Emirates submits that the matter could be dealt with more efficiently. It says the matter has complexities including:

● Relationship between the reason for dismissal and Ms Antoniou’s use of social media. This will require a detailed consideration of jurisprudence in this area;

● Allegations of misconduct arising from the use of social media;

● Disputes as to factual matters;

● Extensive materials filed by Ms Antoniou that do not pertain to the reason for dismissal.

[7] Further, Emirates submits that it would be unfair not to allow it to be represented as it is unable to represent itself effectively:

● It is not a member of a registered organisation;

● It does not employ anyone with experience or expertise as an advocate before the Commission.

[8] Emirates also submits that Ms Antoniou will seek to be represented and does not oppose such an application being granted. In such circumstances it says it would be unfair not to allow it to be represented taking into account fairness between it and Ms Antoniou.

[9] Ms Antoniou seeks permission to be represented by a lawyer or paid agent. She submits that the matter is complex due to:

● the complex factual matrix related to the matter, and disputes over such matters;

● the need to draw on previous decisions of the Commission that could be done more efficiently if representation was permitted;

[10] Ms Antoniou suffers from depression and anxiety brought on by her dismissal. Further, whilst she speaks English fluently she is from a non-English speaking background and her highest level of schooling is Year 11. It therefore would be unfair not to allow her to be represented because the she is unable to represent herself effectively.

[11] Ms Antoniou was a relative junior level employee of Emirates. Witnesses for Emirates include the HR Manager for Australia and New Zealand and the Airport Services Manager. Further, Ms Antoniou understands that Emirates will seek to be represented.

[12] In these circumstances Ms Antoniou submits that it would be unfair not to allow her to be represented taking into account fairness between her and Emirates.

Consideration

[13] In deciding this issue I have had the benefit of written submission of both parties and access to the submissions and evidence that each will rely upon.

[14] I am satisfied that there is a dispute of factual matters that will have to be resolved via evidence and that this can be done more efficiently if representatives with skills in this task are involved.

[15] I am also satisfied that this matter will require the Commission to determine matters associated with the use of social media and employment. Whilst there are a number of decided cases this is not a settled area and a determination of the application will require consideration of the particular circumstances.

[16] In these circumstances I am satisfied that the matter can be dealt with more efficiently if permission was granted given the complexity of the matter.

[17] Having found that the circumstances in s.596(2)(a) are met there is no need for me to consider s.596(2)(b) or (c).

Conclusion

[18] Having found that the matter could be dealt with more efficiently if permission was granted given the complexity of the matter I have decided to exercise my discretion and grant permission to Ms Antoniou and Emirates to be represented by a lawyer or paid agent in the hearing of the application for unfair dismissal.

[19] I have reached this conclusion on the basis of my analysis of the material before me, of the relative situation of each of the parties and to enable the matters to be appropriately drawn out and put to the Commission and in a manner that will fair and efficient.

COMMISSIONER

Final written submissions:

Applicant, 22 April 2016

Respondent, 22 April 2016

 1   [2014] FWCFB 3869.

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