Ying Guan v Australia JW Trading Pty Ltd

[2017] FWC 4384

[2017] FWC 4384

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Ying Guan
v
Australia JW Trading Pty Ltd; H & Y Brother Investment & Development Pty Ltd
(U2017/4759)

COMMISSIONER BISSETT MELBOURNE, 23 AUGUST 2017

Application for an unfair dismissal remedy – permission for representation by lawyers and paid agents – permission granted

[1] Ms Ying Guan has made an application seeking relief from unfair dismissal pursuant to s.394 of the Fair Work Act 2009 (FW Act). Ms Guan was employed by Australian JW Trading Pty Ltd and H&Y Brother Investments Pty Ltd (the Respondents).

[2] The Respondents have sought permission to be represented in the hearing of the application by a lawyer or paid agent pursuant to s.596 of the FW Act. This decision deals with that application only.

[3] Section 596 of the FW Act 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.

(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.

[4] The Respondents submits that:

● It is a small business with no specialist human resources staff;

● Ms Guan was, prior to her dismissal, the most senior person in the companies;

● Ms Guan has had the assistance of a lawyer or paid agent in preparing her material for the Commission;

● The owner of the Respondents and all employees except for Alisa Buckle who is overseas are from non-English speaking backgrounds;

● The owner of the Respondents resides overseas and will not be in Australia to manage the matter;

● Granting permission will enable the matter to be dealt with more efficiently;

● It would be unfair not to allow the Respondents to be represented;

● It would be fair as between Ms Guan and the Respondents to permit representation.

[5] Ms Guan submits that:

● The Respondents have more human resources than she does;

● She no longer has legal assistance as she cannot afford it;

● She is also from a non-English speaking background;

● The owner of the businesses is able to visit Australia if needed so this does not provide grounds for the grant of permission;

● She has tried to settle the matter but the Respondents have been using their financial advantage to force her to give up her claim for compensation.

[6] For these reasons she says it would be unfair if the Respondents were granted permission.

Consideration

[7] Whilst it is not explicit, I take from the submissions of the Respondents that their primary submission is that it would be unfair not to grant permission as they are unable to represent themselves effectively (s.596(2)(b)) and, in the alternative, that the matter could be dealt with more efficiently, given its complexity, if permission was granted. I do not consider that there is any matter of fairness between them and Ms Guan to consider on their application.

[8] The business is a small business. The Form F3 (and this does not appear to be disputed) suggests that JW Trading has five employees. Whilst it is not clear how many employees H&Y Brother Investments has the documentation suggests less than five and that these employees are also employees of JW Trading.

[9] I am satisfied that the business owner (Mr Hu) and one of these employees is currently overseas. I have granted each of them permission to give evidence by telephone. The remaining staff will all appear as witnesses in the proceedings and none of them appear to have any human resources or legal expertise that suggests a capacity to represent the Respondents in the proceedings.

[10] For this reason I am satisfied that the Respondents do not have the capacity to effectively represent themselves.

[11] Ms Guan has put nothing to me to dispute the information of the Respondents except that she says Mr Hu can travel to Australia if he so desires. Whilst this may be the case I do not find it a compelling reason to alter my conclusion. Even on Ms Guan’s evidence Mr Hu spends most of the year overseas. This suggests he has little knowledge of the operations of the Fair Work Commission or industrial law such that he could effectively represent the Respondents.

[12] It is not necessary for me to consider if the matter is of such complexity that it could be dealt with more efficiently if permission was granted and mere incantations of the criteria in s.596(2) of the Act are not a submission of sufficient detail that warrants any consideration.

[13] Having found that the provisions of s.596(2)(b) have been satisfied it is necessary to consider whether I should exercise my discretion and grant permission.

[14] I appreciate that Ms Guan will not have legal representation at the hearing. This is a matter relevant to the exercise of my discretion.

[15] I have carefully considered the effect the grant of permission may have in the proceedings. Despite the size of the business this is not a small case before the Commission. There are currently three days set aside for hearing and nine witnesses identified. The proceedings will be subject to translation for their entirety. These logistical issues weigh in favour of the exercise of my discretion to grant permission.

[16] I have carefully weighed up the circumstances of the parties to these proceedings and considered the detail with respect to the conduct of the proceedings. I have decided, given these matters, that I should exercise my discretion to grant permission to the Respondent to be represented.

[17] Permission is therefore granted to the Respondents to be represented pursuant to s.596 of the FW Act.

COMMISSIONER

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