Fair Work Act 2009
s.394—Unfair dismissal

Shani Southwell
v
New Horizons Enterprises Ltd
(U2022/2454)

Stephen Prager
v
New Horizons Enterprises Ltd
(U2022/2827)

Application for an unfair dismissal remedy – section 596 – representation by lawyers and paid agents – permission to be represented granted.

[1] Ms Shani Southwell and Mr Stephen Prager separately made applications for unfair dismissal remedies against New Horizons Enterprises Limited.

[1] New Horizons Enterprises Limited (“New Horizons”) has sought the permission of the Commission to be represented by a lawyer pursuant to s.596 of the Fair Work Act 2009 (Cth) (the FW Act). This decision deals only with New Horizons’ application.

[2] Section 596 of the FW Act is relevantly 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] New Horizons relies on each of the subsections in s.596(2).

[4] The following general principles can be drawn from earlier decisions of the Commission and of the Federal Court on permission to appear:

(a) the default position is that each party appears on their own behalf; 1

(b) permission may be granted “only if” at least one of the requirements of s.596(2) are made out;

(c) the assessment of whether permission should be granted under s 596 involves a two-step process: firstly considering whether one or more of the criteria in s 596(2) is satisfied, and secondly considering whether the Commission’s discretion should be exercised in favour of the party seeking permission in all of the circumstances of the case; 2

(d) a decision to grant or refuse permission is not a mere procedural decision, it is a decision which may fundamentally change the dynamics and manner in which a hearing is conducted; 3

(e) the Commission must perform its functions and exercise its powers in a manner that is fair and just, quick and informal, and avoids unnecessary technicalities; 4.

(f) allowing lawyers to appear in Commission proceedings runs the very real risk that what was intended by the legislature to be an informal procedure will be burdened by unnecessary formality; 5

(g) representation by lawyers or paid agents who are familiar with and/or experienced in the Commission’s jurisdiction will generally be of assistance; 6

(h) a grant of permission to appear pursuant to s.596(1) of the Act is based upon a presumption that the legal representative to whom leave is granted will conduct themselves with probity, candour and honesty; 7

(i) the power to grant permission does not include any power to select who the legal representative will be; 8

(j) the only test the Commission must apply under s.596(2)(a) is whether granting permission “would enable the matter to be dealt with more efficiently”. In applying this test, the Commission must take into account the complexity of the matter, but it does not have to find that the matter is actually complex, nor does it have to find that a matter is more complex than other matters; 9

(k) experienced legal representatives are more likely to give close regard to the boundaries of the matters subject to the dispute and any proposed remedy.¹⁰ Where competent legal representation is involved there are greater prospects of the case being run more efficiently and focused on the relevant issues to be determined;¹¹

(l) the Commission must give reasons for granting permission; 12 and

(m) a decision to grant permission can be reviewed or revoked under s.603. 13

[5] Neither Ms Southwell nor Mr Prager are vaccinated. Both worked in disability services. In 2021 the work they performed was covered by Public Health Orders that required them be vaccinated against COVID-19. It seems that ultimately they were both dismissed because they refused to be vaccinated.

[6] In these matters the Applicants are represented by Mr Alex Smith, who insists he is neither a lawyer nor a paid agent. Mr Smith represents a number of unvaccinated applications in proceedings before me.

[7] The materials filed on behalf of the Applicants are hundreds of pages in length, much of which appears to have limited relevance to the cases at hand. The filed written submissions contain various assertions about the lawfulness of covid vaccinations generally, submissions about the application of the Australian Constitution, allegations of jurisdictional misfeasance, nonfeasance and malfeasance by the Commission in refusing to “recognise the supremacy of the current Commonwealth-Constitution over all States’ and Territories’ Laws/Acts and Regulations, such as s5, s109, s51(xxiiiA) of the current Commonwealth-Constitution is established as prima facie”, an argument that there is some kind of “estoppel by silence” that applies because there is said to be “a prima facie case of biased considerations in favour of the Employer/Respondent by FWC as a whole” and so on.

[8] New Horizons argues that because the Applicants are challenging the legality of state public health orders the Commission should find there are complex legal issues that need to be determined. The Respondent says that having lawyers involved in this matter would assist the Commission in efficiently addressing and resolving these legal issues.

[9] Neither applicant filed any written submissions in relation to the Respondent’s request to be represented by a lawyer.

[10] Without commenting on the strength of the arguments put more generally by the Applicants in their filed material, I accept New Horizons’ submission that the Applicants’ cases rely upon, and call into play, questions of law with potentially significant consequences.

[11] The Respondent further submitted that the Applicants’ originating materials “demonstrates an unfamiliarity with the issues that need to be determined under Pt 3-2 of [the Act]” and that granting the permission sought will assist the Commission in keeping the factual and legal issues contained only to what is necessary and so ensure the matter is dealt with more efficiently.

[12] The question to be determined under s.596(2)(a) is whether granting permission “would enable the matter to be dealt with more efficiently.”

[13] Recognising the presumption that the legal representatives will conduct themselves with probity, candour and honesty, and give close regard to the boundaries of the matters subject to the dispute, I am satisfied that there are greater prospects of the case being run more efficiently and focused on the relevant issues to be determined if permission is granted.

[14] I am satisfied that s.596(2)(a) is enlivened and that I am able to grant the permission sought. I am also satisfied that I should exercise my discretion to grant permission.
[15] In the circumstances I grant New Horizons permission to be represented by a lawyer.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR743390>

 1   Warrell v Walton (2013) 233 IR 335, [2013] FCA 291 at [24].

 2   Wellparks Holdings Pty Ltd t/as ERGT Australia v Govender [2021] FWCFB 268 at [48], Inna Grabovsky v United Protestant Association of NSW Ltd t/a UPA [2018] FWCFB 4362 at [44].

 3   Warrell v Walton (2013) 233 IR 335, [2013] FCA 291 at [24], Inna Grabovsky v United Protestant Association of NSW Ltd t/a UPA [2018] FWCFB 4362 at [37].

 4   Fair Work Act 2009 (Cth), s.577.

 5   Warrell v Walton (2013) 233 IR 335, [2013] FCA 291 at [25].

 6   Priestley v Department of Parliamentary Services [2011] FWAFB 5585 at [13].

 7   Allen v Fluor Construction Services Pty Ltd (2014) 240 IR 254, [2014] FWCFB 174 at [48], citing Oram v Derby Gem Pty Ltd [2004] 134 IR 379 at [62].

 8   Inna Grabovsky v United Protestant Association of NSW Ltd t/a UPA [2018] FWCFB 4362 at [38] citing NSW Bar Association v McAuliffe [2014] FWCFB 1663 and Fitzgerald v Woolworths Limited [2017] FWCFB 2797 at [32].

 9   Toby Artery v G Case & H Case T/A Gavin Case Marine Services [2021] FWC 4130 at [19]-[21].

10 CEPU v UGL Resources Pty Ltd [2012] FWA 2966 at [25].

11 Applicant v Respondent [2014] FWC 2860 at [20].

 12   Warrell v Walton (2013) 233 IR 335, [2013] FCA 291 at [26].

 13   Oratis v Melbourne Business School [2014] FWCFB 3869 at [8].