| [2017] FWC 6083 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Michael Taylor
v
Startrack Express T/A Startrack
(U2017/10094)
COMMISSIONER CAMBRIDGE |
SYDNEY, 20 NOVEMBER 2017 |
Termination of employment - representation by lawyers and paid agents.
[1] This Decision involves an application for unfair dismissal remedy which has been made under s. 394 of the Fair Work Act 2009 (the Act). The application was made by Michael Taylor (the applicant). The respondent employer is the Startrack Express Pty Ltd T/A Startrack (the employer).
[2] This Decision is made in respect to the discrete question as to whether the Fair Work Commission (the Commission) should grant permission for the employer to be represented by lawyers or paid agents (the representation question).
[3] The application was filed on 15 September 2017, and the applicant is represented by the Transport Workers’ Union of Australia (TWU). The employer filed a response to the application dated 5 October 2017, which was made by its Senior Workplace Relations Advisor, Evan Henley.
[4] The file indicates that conciliation of the matter occurred on 17 October 2017. The matter has been scheduled for Hearing/Conference on 6 December 2017, at Sydney.
[5] On 6 November 2017, Lander & Rogers lawyers filed a notice of representative commencing to act on behalf of the employer.
[6] The TWU, on behalf of the applicant, has formerly raised objection to the employer being represented by lawyers or paid agents.
[7] Lander & Rogers have provided written submissions dated 9 November 2017, in support of permission being granted for the employer to be represented by lawyers or paid agents. The TWU has provided written submissions dated 15 November 2017, opposing the representation question being granted in favour of the employer. The representation question has been determined upon the documentary material which has been filed by the Parties.
[8] I have examined and considered the filed documentary material including, in particular, the written submissions made by Lander & Rogers on the representation question as the basis for this Decision.
[9] The question of representation in proceedings before the Commission is governed by s. 596 of the Act which is in the following terms:
(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.”
[10] The legislative intentions underpinning s. 596 of the Act have been the subject of various Decisions of the Commission and of Fair Work Australia. Further, the approach to consideration of the representation question has been examined by way of Judicial Review in the (incorrectly named) Judgment of Warrell v Walton 1 (Warrell) and it is relevant to note, in particular, paragraph 25 of that Judgment.
[11] It is also relevant to note that the operation of s. 596 of the Act has been the subject of recent examination by a Full Bench Decision in the case of Fitzgerald v Woolworths Limited 2 (Fitzgerald). The Full Bench Decision in Fitzgerald has established, inter alia, particular practical consequences that have application in circumstances where permission for a party to be represented by lawyers or paid agents is refused, or where lawyers or paid agents undertake a representative role without first obtaining the permission of the Commission.
[12] Subsection 596 (2) of the Act includes three factors 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/Conference of a claim for unfair dismissal. The three factors which can be identified in paragraphs (a), (b) and (c) of subsection 596 (2), can be paraphrased as: (a) complexity/efficiency; (b) inability/effectively; and (c) fairness.
[13] In this case, the employer’s representatives have submitted that those factors found in subsections 596 (2) (a), (b) and (c) of the Act, respectively involving, complexity/efficiency, inability/effectively, and fairness, all operated to provide basis for the Commission to grant permission for the employer to be represented by lawyers. Conversely, the TWU, on behalf of the applicant, have stated strong objection to the employer being granted permission for legal representation. The TWU has asserted that those factors found in subsections 596 (2) (a), (b) and (c) of the Act, all operated to provide basis for the Commission to refuse permission for the employer to be represented by lawyers.
[14] In this instance, Lander & Rogers have submitted that the matter involved sufficient complexity such that its determination would be assisted by legal representatives. The complexity was asserted to arise from a requirement for the employer to undertake a detailed analysis of the available evidence in relation to the substantive reason for dismissal, being the finding that the applicant had engaged in misconduct, warranting dismissal.
[15] It was also submitted that “…Patrick Barry of counsel and Lander & Rogers have been involved in the matter from an early stage after the application was filed, including assisting with preparation of evidence. Therefore, the nominated legal representatives are familiar with the matters in evidence and will be well placed to deal with the matter in an efficient and timely manner.” 3
[16] Further, it was submitted by Lander & Rogers that witnesses that were to be called, including the applicant in particular, would be tested as to the truthfulness of their evidence. It was contended that testing and determining the veracity of the applicant’s evidence was likely to require efficient and effective cross-examination and re-examination, and this would be achieved more efficiently if it was conducted by an experienced legal representative.
[17] Lander & Rogers also submitted that by granting permission for lawyers to appear in the matter there would be less risk of the matter running over time given that the matter had been listed for Hearing for one day only.
[18] The TWU asserted that the matter was not complicated, nor did it involve a particularly voluminous amount of evidence. The TWU submitted that the dismissal of the applicant involved facts that had been obtained by the employer, and which included admissions made by the applicant. Therefore, it was asserted that it was unlikely that there would be a need for extensive cross-examination, and the matter did not involve a complex factual or legal matrix. The TWU further stated that the witness statements that had been filed were brief and uncontroversial and that it was “…nonsensical to suggest that the matter could not be dealt with in one (1) day.” 4
[19] Upon examination of the material which has been filed, and a consideration of any contests that may arise from it, I am unable to recognize a level of complexity beyond that which would ordinarily be found in a routine unfair dismissal matter. The matter presents as a fairly straightforward misconduct case.
[20] Lander & Rogers advanced an argument that the employer would be unable to represent itself effectively without the assistance of lawyers or paid agents. It was submitted that the instructor from the employer had very limited previous experience in advocacy and representing the employer before the Commission in proceedings that involved cross-examination of witnesses.
[21] Lander & Rogers referred to other Decisions of Fair Work Australia and the Commission which had granted permission for legal representation on the basis that the employer’s particular management representatives appeared to have been insufficiently experienced in representing their employer in proceedings before the Commission. According to the submissions made by Lander & Rogers, similar circumstances arose for the employer in this instance, notwithstanding that it did not involve any jurisdictional issues.
[22] The TWU submitted that the employer was part of a large Australia-wide group of companies that has a dedicated human resources department which comprises people with training in employment law and industrial relations. The TWU submitted that the employer would be able to create a striking impression upon the Commission without representation by an external lawyer or paid agent.
[23] Upon examination of the submissions made, I am not convinced that the employer could not effectively represent itself without lawyers. I believe that given the size of the employer’s operation which includes specialist staff in a “human resources team”, those who would represent it would be capable of making a “striking impression” or be “impressive” or be “powerful in effect”.
[24] The issue of fairness between the Parties is a matter of recognised significance. In this instance both Parties have made submissions which have addressed the question of fairness.
[25] Lander & Rogers submitted that it would be unfair if the employer was denied an opportunity to be represented by lawyers. The submissions made by Lander & Rogers noted that the applicant was represented by a legal officer from the TWU. Further, it was submitted that although the employer was a large corporation, it had limited capacity within its Human Resources or Legal department. Further, Lander & Rogers submitted that the employer did not directly employ any other person with experience in advocacy or cross-examination who could conduct the case on its behalf. It was said that these circumstances would provide an unfair advantage to the applicant and risk prejudicing the employer’s defence.
[26] The submissions made by Lander & Rogers also stated that; “Should the FWC decline the Respondent leave to be represented, we will provide the Respondent with assistance and advice in the role of a McKenzie friend, pursuant to R v Bow County Court; Ex parte Pelling [1999] All ER 751, which in our respectful submission does not require the leave of the FWC, as in that instance we would not be appearing as an advocate or addressing the FWC.” 5
[27] The TWU submitted that no unfairness would arise if the employer was not legally represented. The TWU submissions noted that its particular representative was a second year law student who had no experience in advocacy concerning litigation of an unfair dismissal claim. The TWU further submitted that the employer was a large, well-resourced organisation with a number of officers that were capable of running an unfair dismissal matter.
[28] The TWU made further submissions which asserted that the objects of the Act would be advanced if the employer was not granted permission to be represented by lawyers or paid agents. The submissions made by the TWU asserted that the employer was seeking to be granted permission for legal representation for its own convenience rather than dealing with the matter itself. The TWU submitted that it was the clear intention of the Act that the general rule would be that Parties would represent themselves.
[29] The TWU also made submissions opposing the proposition that Lander & Rogers would act as a “McKenzie friend” for the employer during the Hearing. The TWU referred to an extract from the Full Bench Decision in the Fitzgerald case as basis to reject the involvement of Lander & Rogers in the event that the employer was not granted permission to be represented by lawyers or paid agents.
[30] In this instance, having regard for the respective representational positions of the Parties, there would appear to be little unfairness created if the employer was required to utilise its own staff, some of whom may be legally trained or qualified, albeit without significant experience in advocating in a Hearing of an unfair dismissal matter. The employer is a large organisation with dedicated personnel who deal with employment related matters. This circumstance should be contrasted with small employers who have no staff engaged in dedicated roles that deal with employment related matters.
[31] The Act envisages that Parties appearing before the Commission would not be represented by lawyers or paid agents. It may be said that the “default position” is that lawyers and paid agents are excluded from representation of Parties in proceedings before the Commission. The “default position” which excludes lawyers and paid agents, has been established in the interests of informality as was recognised in the following extract from the Warrell Judgment; “The appearance of lawyers to represent the interests of parties to a hearing runs the very real risk that what was intended by the legislature to be an informal procedure will be burdened by unnecessary formality.” 6
[32] In the present circumstances, applying in particular, the reasoning contained in the Judgment in the Warrell case, I consider that unnecessary formality would be created by the granting of permission for legal representation. There would be no imbalance created by a circumstance where an applicant was represented by an officer from a registered organisation, and a large, respondent employer utilised one or more of its specialist employment staff. A configuration of this nature would be entirely consistent with the legislative regime, particularly in circumstances where complexity has not been established.
[33] 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 lawyers or paid agents is refused. In accordance with the Full Bench Decision in the Fitzgerald case, the refusal to grant permission will apply to provide exclusion for Lander & Rogers, or any other lawyer of paid agent, to provide the employer with assistance and advice in the role of a “McKenzie friend”.
COMMISSIONER
1 Warrell v Walton [2013] FCA 291.
2 Stephen Fitzgerald v Woolworths Limited [2017] FWCFB 2797.
3 Submissions of Lander & Rogers (9 November 2017) @ paragraph 10.
4 Submissions of the TWU (15 November 2017) @ paragraph 20 (c).
5 Submissions of Lander & Rogers (9 November 2017) @ paragraph 27.
6 Warrell v Walton [2013] FCA 291 @ paragraph 25.
Printed by authority of the Commonwealth Government Printer
<Price code C, PR597858>