[2013] FWC 3405

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

Mr Emmanuel Azzopardi
Serco Sodexo Defence Services Pty Limited


SYDNEY, 29 MAY 2013

Termination of employment - representation by lawyers and paid agents.

[1] This Decision involves an application for unfair dismissal remedy made pursuant to s.394 of the Fair Work Act 2009 (the Act). The application was made by Emmanuel John Azzopardi (the applicant). The respondent employer is Serco Sodexo Defence Services Pty Ltd (the employer).

[2] This Decision is confined to the discrete question as to whether the Fair Work Commission (the Commission) should grant permission for the employer to be represented by a lawyer or paid agent.

[3] The application was filed on 29 January 2013 and the employer filed a response on 15 February 2013. The matter was the subject of unsuccessful conciliation held on 22 February 2013.

[4] On 8 April 2013, lawyers for Ashurst Australia filed a Notice of Representative Commencing to Act on behalf of the employer. On 6 May 2013, the applicant formerly raised objection to the employer being represented by a lawyer. This objection was primarily advanced on what I perceive to be a proposition that the Commission should refuse permission for the employer to be represented by a lawyer in the interests of justice and fairness.

[5] The applicant provided a written submission attached to his communication dated 6 May 2013, which maintains the objection to the Commission granting permission for the employer to be represented by a lawyer. The employer has provided written submissions in support of permission being granted for it to be represented by a lawyer.

[6] The Commission conducted a Hearing on 28 May 2013 to deal with the question of whether permission should be granted for the employer to be represented by a lawyer or paid agent.

[7] I have carefully examined and considered the respective submissions of the parties as the basis for this Decision.


[8] The question of representation in proceedings before the Commission is governed by section 596 of the Act which is in the following terms:

[9] It should be noted that these provisions represent a more stringent requirement for the granting of permission than existed under the predecessor provisions of the Workplace Relations Act 1996. There have been a number of Decisions of the Commission which have recognised the legislative intention to broadly restrict and limit the basis upon which permission would be granted for legal (and paid agent) representation in proceedings before the Commission as compared with the Australian Industrial Relations Commission. In this respect I refer in particular, to the Decision of Harrison C in Rodney James Rogers v Hunter Valley Earthmoving Company Pty Ltd [2009] FWA 572, and the Decision of Lewin C in Chris Lekos v Zoological Parks and Gardens Board [2011] FWA 1520.

[10] Further, the legislative intention underpinning s.596 of the Act has been the subject of Judicial Review in the (incorrectly named) Judgment of Warrell v Walton 1 (Warrell) and I refer in particular to paragraph 25 of that Judgment.

[11] Upon examination of subsection 596 (2) there appears to be three, and only three, criteria which separately or in combination, provide basis upon which the Commission can grant permission for a lawyer or paid agent to represent a party in proceedings such as the Hearing of a claim for unfair dismissal. The three criteria which can be identified in paragraphs (a), (b) and (c) of subsection 596 (2), can be paraphrased as: (a) complexity/efficiency; (b) inability; and (c) fairness.

[12] In this case the employer submitted that the criteria involving efficiency, inability and fairness contained in subsection 596(2) of the Act were satisfied in a manner which provided basis to grant permission for it to be represented by a lawyer.

Complexity/Efficiency - Subsection 596 (a)

[13] The employer submitted that the matter involved sufficient complexity such that its determination would be assisted by legal representatives. The complexity was asserted to arise from the nature of the circumstances surrounding the dismissal of the applicant. Alternatively, the applicant rejected the complexity attributed to the matter by those representing the employer.

[14] In respect of the issue of complexity, the circumstances that surround the dismissal of the applicant encompass a considerable period of time and touch upon matters raised in some earlier proceedings taken by the applicant under s.365 of the Act. Although the volume of this material might appear to be significant, the matters under examination involve questions which routinely require determination in unfair dismissal proceedings.

[15] On balance, I am not convinced that the matter is of sufficient complexity that it would be dealt with more efficiently with the assistance of legal representatives.

Inability - Subsection 596 (b)

[16] The employer advanced an argument that it was unable to represent itself effectively without a lawyer. The alleged inability was said to primarily arise from the requirement that particular persons who would provide evidence for the employer would, without lawyers, also be required to advocate the case on behalf of the employer.

[17] The difficulty that is presented when a person has to be both witness and advocate is also experienced by the unrepresented applicant.

[18] Upon examination, the employer’s submissions represented a reflection of desirability for legal representation rather than any inability to adequately represent itself. Consequently, I do not believe that the employer would be unable to represent itself effectively without a lawyer.

Fairness - Subsection 596 (c)

[19] In this instance, both parties have made submissions which have stressed the question of fairness. The issue of fairness between the person and other persons in the matter has some significance. The employer submitted that unfairness arose if it were denied an opportunity to be represented by lawyers. The applicant has submitted that it would be unfair to permit the employer to be represented by a lawyer.

[20] Importantly, if permission for legal representation for the employer was granted, something of an imbalance would emerge whereby it would be represented by a lawyer while the applicant would be self represented. The resultant imbalance would create great potential for the absence of a fair and just Hearing as was identified by the Federal Court Judgment in the Warrell case.

[21] In these circumstances, applying the reasoning contained in the Judgment in Warrell, I consider that unfairness would be created by the granting of the permission for legal representation. The resultant imbalance created by the more advantageous representation of the employer against the self represented applicant should be avoided. Therefore the fairness criterion would, in this instance, operate strongly against granting permission.

[22] In view of the conclusions that I have reached in respect of each of the relevant aspects of subsection 596(2) of the Act, the permission sought by the employer to be represented by a lawyer is refused.



Mr E Azzopardi, appearing as the applicant in person

Ms J Seymour, Counsel with Ms E Raynor, Solicitor on behalf of the respondent

Hearing details:

May, 28.

 1   Warrell v Walton [2013] FCA 291.

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