Fair Work Act 2009
Section 394 - Application for unfair dismissal remedy

James Maiolo
v
Wrightville Services Pty Ltd
(U2021/11647)

Application for an unfair dismissal remedy – representation – permission granted

[1] This decision concerns representation in unfair dismissal matter U2021/11647.

[2] This decision is published for two reasons. Firstly, s 601(2) of the Fair Work Act 2009 (FW Act) requires written reasons. Secondly, whilst my general practice is to provide reasons for interlocutory decisions informally by email, given the unorthodox conduct of the applicant’s representative at a directions hearing on 15 February 2022 it is appropriate to underline the serious responsibility held by representatives in proceedings before the Commission.

Background

[3] I issued directions on 16 February 2022. These required a party seeking to be represented and requiring permission to file submissions by 8 March 2022, and any responses by 15 March 2022.

[4] The respondent employer has sought permission.

[5] The applicant has indicated that his representative is not a paid agent or legal practitioner and does not require permission.

Consideration

[6] Section 596 of the FW Act provides:

“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.”

[7] Granting permission under s 596 involves a two-step process. The first is that at least one of the criteria in s 596(2) needs to be satisfied. This first step “involves the making of an evaluative judgment akin to the exercise of discretion.” 1 The second is that the discretion, if exercised, must be exercised in favour of the applicant for permission2 in the sense that the discretion concerns whether to grant permission, not whether to deny or withdraw an established right.

Representation by Applicant

[8] The Commission’s directions of 16 February 2022 provided:

“The FAIR WORK COMMISSION DIRECTS James Maiolo to provide to the Commission and to Wrightville Operations Pty Ltd by close of business (5.00pm ACDT) on Tuesday 22 February 2022:

● the correct and legally recognised name of his intended representative who identified himself only as “Agent Swift – Rick” at a directions hearing on 15 February 2022;
● contact details, including an email address of any representative; and
● the capacity in which the representative intends to appear (in particular whether they are a paid agent or a legal practitioner).”

[9] This direction followed a telephone directions hearing on 15 February 2022 at which a person purporting to represent the applicant only identified himself as “Agent Swift – Rick”. After twice being asked by myself to state his full legal name and the capacity in which he appeared, and with no different response provided, I declined to hear further from the representative.

[10] I note that the applicant’s originating proceeding (F2) states his representative as ‘Agent Swift’ of the Universal Life Church, Waikiki, Western Australia.

[11] The applicant complied with the aforementioned direction. By email of 22 February 2022 the applicant advised:

“Greetings Fair Work Commission,

It is my will for Richard Swift to act as the attorney in fact as the unpaid agent for this matter.

The unpaid agent email a.gent.le.man.swift@ [email domain and phone number redacted].

Pax Tecum

:James_joesph”

[12] In a written statement filed that same day, the applicant stated:

“1. I am the being commonly known james-joesph bonded by the blood of the house

maiolo (“myself”), and;

2. It is “myself” will for the free agent:swift to act as the attorney in fact for the above

listed arbitration for the matter above with the Fair Work Commision, and;…”

[13] Although the remainder of the applicant’s materials were voluminous and not easy to navigate, I am able to discern that the applicant has appointed Richard Swift as his representative in this matter and that Mr Swift is an unpaid agent.

[14] In these circumstances, the applicant does not require permission to be represented by Mr Swift under s 596 of the FW Act.

[15] In its response, the respondent employer stated:

“The Respondent notes, however, that pursuant to section 589(1) of the FW Act the FWC has the power to make decisions as to how a matter is to be dealt with. The Respondent reserves its right to make an application for the FWC to make an order ceasing to recognise Mr Swift as the representative for the Applicant in the event that Mr Swift’s conduct of the matter on the Applicant’s behalf is unreasonable or vexatious.”

[16] The Commission’s powers under the FW Act to conduct proceedings in a fair, efficient and orderly manner and to issue directions and orders to that end are extensive (s 589). Disorderly conduct or non-compliance with orders or directions may be an offence (ss 674, 675 and 676) and may result in a party or representative not being heard or applications dismissed (s 587).

[17] The Commission also has power to strike out or have no regard to irrelevant or scandalous components of statements and submissions filed or relied upon. In this respect I note that the applicant’s materials appear to include references to the legal practitioner and firm who filed the respondent employer’s F3 response together with assertions of perjury, deception and

“unclean hands at equity for what appears to be dirty deeds for the dark over lords.”

[18] Whatever this may mean, I draw attention to the obligation on a party to frame their case and respond to that of the other side with respect for the Commission’s processes, and in the knowledge that scandalous content may be struck from the record if not relevant or moderated. I also note that s 676 of the FW Act makes it an offence to threaten, intimidate, coerce or prejudice a person because they have given information or documents to the Commission.

[19] Further, a party or representative who conducts themselves vexatiously or in an unreasonable manner may be exposed to a costs order (s 601) including costs ordered against parties or representatives specifically in relation to unfair dismissal matters (ss 400A and 401).

Representation by Respondent

[20] The respondent employer has sought permission to be represented by a legal practitioner.

[21] Having regard to the matters in issue and the materials filed to date, I am satisfied that representation is likely to enable the application to be dealt with more efficiently, taking into account its complexity. In particular, representation is capable of better navigating the voluminous materials to discern relevance, to focus cross examination on relevant disputed facts or issues of credit, and make submissions on developing industrial and legal jurisprudence as it relates to vaccination policy and mandates in the workplace. Section 596(2)(a) is made out.

[22] Permission is granted for the respondent employer under section 596 of the FW Act. A condition that I will place on this grant of permission is that in any future conciliation proceedings conducted by the Commission, a properly authorised officer of the respondent employer also be in attendance. This would ensure any such proceedings are as meaningful as possible.

Amendment to F2

[23] At the directions hearing on 15 February 2022 the respondent drew to the applicant’s attention that ‘Wrightville Operations Pty Ltd’ was not the employer of Mr Maiolo; his employer was Wrightville Services Pty Ltd.

[24] In light of this intimation the applicant sought leave to amend his F2. No objection has been received from the respondent. Mr Maiolo has filed an amended F2.

[25] I grant leave for Mr Maiolo to amend his application in these terms.

[26] The matter is listed for hearing on 19 April 2022 pending member assisted conciliation.

[27] The directions of 16 February 2022 are unaltered by this decision.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR739375>

 1   Asciano Services Pty Ltd v Hadfield [2015] FWCFB 2618 at [19]

 2   Calleri v Swinburne University of Technology [2017] FWCFB 4187 at [36]