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

Lindsay-Kay Taylor
v
Bunbury Baptist College INC
(U2022/817)

Application for an unfair dismissal remedy – applicant objection to respondent being represented by a lawyer or paid agent at staff conciliation – objection dismissed.

[1] Lindsay-Kay Taylor (Applicant) has made an application seeking a remedy for unfair dismissal pursuant to s.394 of the Fair Work Act 2009 (FW Act) with respect to the termination of her employment with Bunbury Baptist College Inc (Respondent). The application is due to be dealt with by a staff conciliator on Tuesday 5 April 2022. The Respondent has indicated that it intends to be represented by a lawyer at the staff conciliation. The Applicant has raised an objection to allowing a lawyer to represent the Respondent. The matter has been referred to me as National Practice Leader for Unfair Dismissals.

[2] The Fair Work Commission Rules 2013, whilst acknowledging the requirements of s.596(2) of the Fair Work Act 2009 (FW Act) that a party may only be represented in proceedings before the Commission with permission allow a party to be represented without permission in a conference in relation to an unfair dismissal matter conducted by a member of staff of the Commission (see Rule 12(2)(b)(i)). However, the Commission retains the power to “direct that a person is not to be represented in the matter” (Rule 12(3)). It is pursuant to this later provision that the Applicant requests that the Respondent not be represented in the upcoming staff conciliation. I have accepted the Applicant’s application as being for a direction under Rule 12 that the Respondent not be able to be represented.

[3] This decision is directed only to the request of the Applicant that the Respondent not be allowed to be represented in the staff conciliation. Nothing in this decision is determinative as to whether permission should be granted should the matter proceed to a hearing before a Member of the Commission. Any question of permission at that stage will be determined by the Presiding Member.

SUBMISSIONS

Respondent

[4] The Respondent says it should be allowed to be represented at the staff conciliation because:

•  It has been represented by a lawyer since the application was made;

•  The dismissal is in relation to matters associated with mandatory vaccination matters, on which the Commission has issued few decisions to date;

•  The matter will involve contested facts and cross examination;

•  The Respondent has no human resource staff with the necessary expertise to represent the Respondent in proceedings;

•  The Respondent’s Chairman does not have the necessary skills to effectively represent the Respondent and the Respondent’s Chairman will, in any event, give evidence in proceedings;

•  There is some complexity to the matter such that it will be dealt with more efficiently if permission was granted;

•  It will not oppose representation if sought by the Applicant.

Applicant

[5] The Applicant opposes the Respondent being allowed to be represented. She submits:

•  Her dispute is with “Michael Smith” as he is the one who took action against her and so attempts to find a resolution should be by discussion between her and Michael Smith

•  Permission will not enable the matter to be dealt with more efficiently, the Respondent is able to represent himself effectively and it would be unfair if the Respondent was represented and the Applicant not;

•  It would be unfair to allow one party to be represented when the other is not;

•  The Respondent has past experience in unfair dismissal matters and so has built a better knowledge base than the Applicant;

•  The Respondent already has an advantage by having services of a lawyer to date;

•  The Respondent has a large number of staff to assist him in putting documents together;

•  The balance is already in favour of the Respondent and to give it permission would further tilt that imbalance in the Respondent’s favour;

•  The matter is not particularly complex with the Commission having experience in more substantial matters.

CONSIDERATION

[6] There is nothing in Rule 12(2) which sets out those matters which must be taken into account in determining if a direction that a party not be represented as allowed for under the Rules should be issued – that is, the considerations are not limited to those which must be considered in deciding if permission should be granted under s.596(2) of the FW Act. The Commission “has a broad discretion as to whether to issue the direction” sought by the Applicant (Kennedy v Qantas Ground Services Pty Ltd [2018 FWCFB 4319 at [11]).

[7] Both the Respondent and Applicant have provided submissions that go to representation in a hearing before a Member of the Commission. These submissions have some relevance but, as set out above, are not necessary considerations or conditions as they may be if the application was being made pursuant to s.596(2) of the FW Act. The proceedings scheduled for 5 April 2022 is a conciliation conference before a staff conciliator. It is not a hearing or determinative conference and evidence will not be required to be given or cross examination undertaken. The Conciliation will not be held in open court, is by its nature an informal process (although may result in an agreed outcome) and is a confidential process only attended by the parties and their permitted representatives/support people. For this reason I have had some regard to those submissions but am not limited to those matters only. As I have said above this decision is in relation to conciliation only with the question of representation in any substantive merits hearing to be determined by the Member who will have control of that.

[8] The Applicant, in her submissions and in the header to her submission on her application, has suggested that her dispute is with Michael Smith (who I understand to be the CEO of the Respondent). This is not a dispute between the Applicant and Mr Smith but rather one between the Applicant and her employer, of which Mr Smith is the CEO. It involves matters not fully within the control of Mr Smith but things in relation to her employment.

[9] I also note that, in her application (Form F2 and attachments) the Applicant has filed extensive materials including correspondence in which she claims “equitable estoppel” relating to notices she served and defaults claimed by her. In this respect the Applicant has introduced a range of complexities to what appears otherwise a relatively straightforward matter in relation to compliance or otherwise with a Directive issued by the Chief Health Officer in WA (I make no finding or comment in relation to whether it constitutes fairness or an unfair dismissal). Presumably she intends to argue and/or rely on the “equitable estoppel” and notices in conciliation. I further note that the Applicant indicates, in all of her correspondence, that she reserves her rights and never waives them. Such a statement may have implications for the conduct and/or settlement of her application. The implication of this oft repeated statement is not clear on any settlement discussions.

[10] The Applicant has made a number of statements in her submissions including as to the experience of the Respondent in such matters and the access of the CEO to “a huge amount of legal advice” on which he can draw. I have not had regard to these statements. I would also observe that one party not being represented is not determinative as to whether the other should or should not be permitted representation.

[11] While I accept that the Commission has dealt with larger cases in the past, including the matter in Kimber identified by the Applicant, and with matters involving vaccination status, each case needs to be considered on its merits and given the individual consideration necessary. There is no rule that applies and it would be the wrong approach to the exercise of the Commission’s discretion.

[12] Having reviewed the F2 application of the Applicant and considered all of her submissions (including earlier emails in which she first raised the matter) I am satisfied that there is no satisfactory reason as to why I should issue a direction which has the effect of prohibiting the Respondent from being represented by a lawyer at the conciliation conference before a staff conciliator. The Applicant herself has raised some complex legal arguments that I am not satisfied the Respondent has capacity to deal with. In reaching this conclusion I note that the Commission’s staff conciliators are highly experienced in the work they do and have the skills necessary to ensure that everyone is given a fair chance to put their views and are not overwhelmed by unnecessary complexities. In this respect I note that there is nothing that prevents a staff conciliator asking to hear directly from a party even when they are represented if that is necessary or beneficial to finding a resolution to the dispute.

[13] I therefore decline to issue a direction preventing representation at the conciliation conference.

COMMISSIONER

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