DECISION

Fair Work Act 2009
s.604 - Appeal of decisions

Rupinderjit Kaur
v
Hartley Lifecare Incorporated
(C2020/7230)

Appeal against decision of Deputy President Dean at Sydney in matter number U2020/7344

[1] Ms Rupinderjit Kaur has lodged an appeal, for which permission is required, against a decision 1 of Deputy President Dean said to have been made on 3 September 2020 in connection with Ms Kaur’s application for an unfair dismissal remedy pursuant to s 394 of the Fair Work Act 2009 (FW Act). The decision being appealed concerns the Deputy President’s grant of permission for legal representation in the matter to the respondent, Hartley Lifecare Incorporated (Hartley), pursuant to s 596 of the FW Act. Ms Kaur appeared on her own behalf in both the proceedings before the Deputy President and the appeal matter listed for hearing before the Full Bench on 6 November 2020.

[2] The factual background to the matter is as follows. Ms Kaur commenced employment with Hartley as a Residential Support Worker on 25 January 2016. Hartley is a not-for-profit organisation based in Canberra providing accommodation support and respite care for persons with physical and complex disabilities. Ms Kaur commenced work with Hartley as a Casual Support Worker on 25 January 2016 and moved to permanent part-time employment in the same role on 9 May 2019. Ms Kaur was then promoted to a Senior Support Worker on 12 December 2019. Following a meeting on 4 May 2020 relating to Mr Kaur’s performance, Ms Kaur’s employment was terminated effective immediately on 6 May 2020.

[3] The termination letter identified the reason for Ms Kaur’s dismissal as “a reoccurring pattern of inappropriate behaviour in the workplace, spanning three years”. This pattern of behaviour was said to include yelling and fighting with other staff members causing clients and staff emotional distress, inappropriate and excessive use of her mobile phone while on shift, inappropriate accusations and communications levelled at supervisors and managers, and failing to comply with the inherent requirements of the position in failing to share “a commitment and genuine desire to support people with disability live their best life” or showing the “ability to work independently and as part of a team”.

[4] Ms Kaur lodged her application for an unfair dismissal remedy on 27 May 2020. In that application, Legal Aid ACT was identified as her legal representative in the matter. Following a failure to resolve the matter at conciliation, it was then allocated to the Deputy President on 6 July 2020, and a directions conference was promptly listed for 10 July 2020. On 8 July 2020, Ms Kaur’s legal representative filed a Form F54 – Notice that lawyer or paid agent has ceased to act for person. Following the directions conference, the Deputy President issued directions to the parties for the filing of submissions and evidence. In the conference, Hartley was also asked to provide written submissions in support of its application for permission for legal representation at the arbitration hearing listed for 16 September 2020.

[5] On 3 August 2020, the Deputy President’s chambers informed the parties by email that the Deputy President had decided to grant permission for Hartley to be represented. The email stated that the Deputy President “was satisfied that the matter could be dealt with more efficiently by the granting of permission for legal representation”. On 19 August 2020, Ms Kaur wrote to the chambers of the Deputy President objecting to the grant of legal representation to Hartley and a conference was listed to further determine the issue for 2 September 2020. At the conference, Hartley was represented by counsel and, at the end of the proceeding, Ms Kaur indicated that she would consent to the grant of permission to Hartley for legal representation on the basis that only Hartley’s counsel was permitted to cross-examine Ms Kaur during the hearing listed for 16 September 2020. However, contrary to this advice, Ms Kaur wrote to the chambers of the Deputy President later the same day confirming her objection to the decision to grant legal permission to Hartley and her intention to lodge an appeal against this decision. The Deputy President subsequently issued a “decision” in writing confirming the grant of permission for legal representation to Hartley on 3 September 2020. Ms Kaur lodged a notice of appeal against this decision on 24 September 2020.

The decision

[6] In the 3 September 2020 “decision”, after outlining the procedural history, relevant provisions of the FW Act and the parties’ submissions, the Deputy President first acknowledged that Hartley can only be represented by a lawyer with the permission of the Commission. 2 The Deputy President then outlined what is required in the granting of permission for legal representation (footnotes omitted):

“[19] The granting of permission under section 596 involves a two-step process. The first is that at least one criterion in section 596(2) needs to be satisfied. The consideration required by this first step “involves the making of an evaluative judgment akin to the exercise of discretion”.  The second is that the discretion, if exercised, must be exercised in favour of the applicant for permission in the sense that the discretion concerns whether to grant permission, not whether to deny or withdraw an established right.

[20] It is well established that a grant of permission under section 596 of the Act is a grant of permission for a party to be legally represented, and not a grant of permission with respect to a particular representative. A Full Bench of the Commission has expressed the principle as follows:

“The power conferred by s.596(2) is simply to “grant permission for a person to be represented by a lawyer or paid agent in a matter”. Nothing in that language suggests that the power extends to the selection of which particular lawyer or paid agent will represent a party applying for permission. In the proceedings below, the duty of the Commissioner was either to grant or refuse permission for the ATO to be represented by a lawyer. It was not within the power conferred on the Commission to choose who that lawyer would be either by reference to the individual identity of the lawyer or by reference to whether the lawyer was a barrister or a solicitor.”

[21] In exercising discretion on the representation question each factor in section 596(2) does not have to be made out although each must be considered.”

[7] Paragraph [21] of the decision above is footnoted with the citation “Warrell v Fair Work Australia [2013] FCA 291 at [24]”.

[8] The Deputy President then said:

“[22] I now turn to consider the factors set out in section 596(2) of the Act: efficiency (in the context of the complexity of the matter); fairness (in the context of the capacity of the person seeking permission to effectively represent themselves); and fairness between the parties.

[23] I consider that granting permission for Hartley to be represented by lawyers in these proceedings is likely to enable the hearing to be conducted more efficiently. I accept the submissions of Hartley that, having not dealt with an unfair dismissal application before, there are much greater prospects of the hearing being conducted efficiently and with due focus on the relevant issues to be determined if at least one party was represented. In this regard, Ms Bindon’s participation will assist the Commission in minimising the time that might otherwise be taken in cross examination, and will focus Hartley’s submissions on the matters that I need to decide.

[24] In circumstances where the effects of COVID-19 has resulted in a significant increase in the workload of the Commission, it is reasonable to ensure that the Commission’s time is used efficiently.

[25] In relation to fairness, section 596(2)(b) and (c) requires fairness to be considered in two contexts: fairness in the context of the capacity of the person seeking permission to effectively represent themselves; and fairness between the parties.

[26] I accept the submissions of Hartley and am satisfied that it would be unlikely Hartley would be able to represent itself effectively. This is so given it does not have staff with experience in unfair dismissal applications, and its human resources staff are stretched in terms of dealing with other significant matters which are outlined above. Further, Ms Granger will be giving evidence in the proceedings.

[27] In terms of unfairness between persons in the matter, I accept there may be some imbalance between the parties. In this regard I reaffirm my advice given to Ms Kaur during the conference on 2 September 2020 that I will provide her with a reasonable level of assistance and guidance to ensure that her submissions and evidence is fully presented, in a manner consistent with my statutory obligations as an independent statutory office holder.”

[9] The Deputy President then concluded that, taking all the relevant matters into consideration, she was satisfied that it was appropriate to exercise the statutory discretion to grant permission to Hartley for legal representation. 3

Appeal grounds and submissions

[10] Ms Kaur’s appeal grounds and submissions can be summarised as follows:

•  the Deputy President erred in failing to make findings of fact to support the conclusion, and erred as to the proper construction of s 596(2) of the FW Act;

•  the Deputy President failed to take into account factors relevant to the criteria in s 596(2);

•  the decision reflected a manifest injustice and would place Ms Kaur at a great disadvantage, as Ms Kaur is self-represented and Hartley would be represented by counsel;

•  Hartley is a large employer in the ACT with access to resources and expertise and a dedicated Human Resources department with approximately 36 staff, meaning they have the ability to represent themselves;

•  Ms Susan Granger was not a witness in the case, and the contacts for Hartley involved in the proceedings were not present at the workplace at the time of any incidents;

•  Hartley terminated Ms Kaur’s contract because Ms Kaur raised particular issues with her employer and their services;

•  Hartley has made false allegations against Ms Kaur in response to her raising these issues and seek to frame her dismissal as a performance-based termination, which is why Hartley seeks permission for legal representation;

•  Ms Kaur’s grounds of appeal make it clear that the matter is not complex and that she is self-represented, English is her second language and she is not legally qualified; and

•  greater fairness would be achieved between the parties if Hartley was not legally represented.

[11] In regards to the grant of permission to appeal being in the public interest, Ms Kaur submits that:

•  the appeal raises important issues;

•  the decision manifests an injustice when compared with previous Commission authorities regarding the grant of permission for legal representation;

•  the inability to access transcript for the conference before the Deputy President on 2 September 2020 is a matter of convenience for the Commission;

•  when employees lose their jobs, it is already stressful, and seeking justice should not depend on an employee’s ability to afford legal representation or their lack of legal qualifications; and

•  Ms Kaur is “fighting for Justice and will fight till the end”.

[12] Hartley submits, in summary, that:

•  the decision does not give rise to any issue of importance and general application as it was a straightforward decision and that Ms Kaur’s preference for a different result does not amount to an issue of this nature;

•  there is no identified diversity of decisions on the application of s 596(2) that warrants the intervention of the Full Bench, and the decision was not disharmonious with similar matters and reflects settled principles applicable to the discretionary test required by s 596(2);

•  it is “plainly insufficient” for Ms Kaur to list authorities where the Commission has declined to grant representation and assert that the decision demonstrates a “manifest injustice”;

•  there is nothing counter-intuitive about the Deputy President’s decision, as the terms of s 596 clearly contemplate that a party ought to be allowed to be represented in certain circumstances where the other party is not represented, and that Ms Kaur’s objection boils down to a belief that parties should represent themselves and that the granting of permission to one party will automatically result in “great disadvantage” to the other;

•  all asserted grounds of appeal are without merit and consequently there is no arguable case of appealable error;

•  there is no basis to find the decision is attended with sufficient doubt to warrant its reconsideration or that substantial injustice may result if permission to appeal is refused, as Ms Kaur’s submissions only point to what she believes to be an unfair result rather than any aspect of the Deputy President’s reasoning which gives rise to doubt;

•  Ms Kaur had not identified any error of fact or error in respect of the construction of s 596 in her submissions;

•  the Deputy President’s reasons from [23]-[27] of the decision plainly illustrate that she did make the necessary findings under s 596(2) to enliven the power to grant permission for legal representation to Hartley;

•  Ms Kaur does not explain what relevant factors the Deputy President is alleged to have neglected in the exercise of discretion under s 596;

•  the fact that the Deputy President did not give more weight to factors supposedly raised by Ms Kaur does not demonstrate that she failed to consider them or otherwise reveal any error in her discretion;

•  the mere fact one party is legally represented while the other is not does not amount to a manifest injustice, as s 596 clearly contemplates this type of situation;

•  Ms Kaur has not provided any credible explanation as to why the grant of legal permission to Hartley is “unfair” or of “great disadvantage”;

•  the Commission cannot refuse to grant Hartley permission to be represented on the basis of any speculation on the part of Ms Kaur concerning Hartley’s intentions for requesting permission for representation; and

•  Ms Kaur’s contention in this respect points to a complex factual matrix in this matter, and this militates against the existence of any manifest injustice in the decision.

Consideration

[13] An appeal under s 604 of the FW Act is an appeal by way of rehearing and the Commission’s powers on appeal are only exercisable if there is error on the part of the primary decision maker.⁴ There is no right to appeal and an appeal may only be made with the permission of the Commission.

[14] Section 400 of the FW Act applies to this appeal (notwithstanding that it concerns an interlocutory decision involving the exercise of power under s 596). 5 Section 400 provides:

(1) Despite subsection 604(2), the FWC must not grant permission to appeal from a decision made by the FWC under this Part unless the FWC considers that it is in the public interest to do so.

(2) Despite subsection 604(1), an appeal from a decision made by the FWC in relation to a matter arising under this Part can only, to the extent that it is an appeal on a question of fact, be made on the ground that the decision involved a significant error of fact.

[15] In the Federal Court Full Court decision in Coal & Allied Mining Services Pty Ltd v Lawler and others (2011) 192 FCR 78 at [43], Buchanan J (with whom Marshall and Cowdroy JJ agreed) characterised the test under s 400 as “a stringent one”. The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment.⁶ A Full Bench of the Commission, in GlaxoSmithKline Australia Pty Ltd v Makin, identified some of the considerations that may attract the public interest:

“… the public interest might be attracted where a matter raises issues of importance and general application, or where there is a diversity of decisions at first instance so that guidance from an appellate court is required, or where the decision at first instance manifests an injustice, or the result is counter intuitive, or that the legal principles applied appear disharmonious when compared with other recent decisions dealing with similar matters.” 7

[16] It will rarely be appropriate to grant permission to appeal unless an arguable case of appealable error is demonstrated. This is so because an appeal cannot succeed in the absence of appealable error.⁸ However, the fact that the Member at first instance made an error is not necessarily a sufficient basis for the grant of permission to appeal.⁹

[17] An application for permission to appeal is not a de facto or preliminary hearing of the appeal. In determining whether permission to appeal should be granted, it is unnecessary and inappropriate for the Full Bench to conduct a detailed examination of the grounds of appeal. 10 However, it is necessary to engage with those grounds to consider whether they raise an arguable case of appealable error.

[18] A difficulty arises at the outset in identifying whether the “decision” published by the Deputy President on 3 September 2020, which is identified in Ms Kaur’s notice of appeal as the decision the subject of the appeal, is in fact the decision by which Hartley was granted permission for legal representation pursuant to s 596(2) or merely reasons given for the earlier decision communicated by email on 3 August 2020. We consider that it is the latter, since the “decision” confirms at paragraph [3] that the Deputy President decided to grant permission for legal representation to Hartley on 3 August 2020 and, at paragraph [5], the Deputy President states that because Ms Kaur had indicated that she wished to appeal this, the decision was published as a result (presumably on the basis that the publication of the Deputy President’s reasons would assist the conduct of the appellate process).

[19] Two issues arise from this conclusion. The first is that Ms Kaur’s appeal was arguably filed outside the 21-day time period provided for in r 56(2) of the Fair Work Commission Rules, since the actual decision the subject of the appeal was made on 3 August 2020 and the appeal was filed on 24 September 2020. No point about this was taken by Hartley. If Ms Kaur requires an extension of time, we would grant it given that the course of the proceedings from 3 August through to 3 September 2020, which we have earlier set out, might legitimately give rise to confusion on the part of a self-represented litigant as to when a decision had actually been made.

[20] The second issue concerns identifying the basis upon which the Deputy President granted permission under s 596(2). Section 596(2) provides:

(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.

[21] The principles concerning the proper interpretation and application of s 596(2) are well established. The assessment of whether permission should be granted under s 596 involves a two-step process. The first is consideration as to whether one or more of the criteria in s 596(2) is satisfied. The consideration required by this first step involves the making of an evaluative judgment akin to the exercise of a discretion. It is only where the first step is satisfied that the second step arises, and involves a consideration as to whether in all of the circumstances the discretion should be exercised in favour of the party seeking permission. The satisfaction of any of the requirements set forth in s 596(2)(a) to (c) does not of itself dictate that the discretion is automatically to be exercised in favour of granting permission.¹¹

[22] We infer from the Deputy President’s email of 3 August 2020 that she considered that the criterion in s 596(2)(a) was satisfied and accordingly that she could proceed to exercise her discretion in favour of the grant of permission. However, the reasons contained in the “decision” of 3 September 2020 blur the position somewhat. In paragraphs [23] and [24], the Deputy President gives her reasons concerning her satisfaction as to the s 596(2)(a) criterion. Notwithstanding this, the Deputy President also considered s 596(2)(b) and (c), seemingly under the rubric of “fairness”. Her consideration of these criteria does not involve any definitive conclusion that either of them were satisfied; rather the Deputy President appears to have treated them as matters of weight bearing upon her exercise of the discretion.

[23] As earlier stated, paragraph [24] of the decision of the Federal Court of Australia (Flick J) in Warrell v Fair Work Australia 12 is cited in support of the proposition that s 596(2) requires all of the matters in paragraphs (a)-(c) to be considered when dealing with the question of representation. The proposition has no basis either in that paragraph or the decision as a whole. If one of the criteria in s 596(2)(a)-(c) is found to be satisfied and consideration is then given as to whether the discretion to grant permission should be exercised, then it is no doubt open for some of the matters adverted to in the other criteria to be treated as relevant and taken into account in that context. But s 596(2) does not require that all of the criteria be considered and treated as matters of weight in the exercise of the discretion.

[24] However, we do not consider that these matters justify the grant of permission to appeal in the public interest. The Deputy President reached the conclusion that s 596(2)(a) was satisfied, and that entitled her to move to the second step of considering whether the discretion to grant permission should be exercised in Hartley’s favour. In her consideration in that respect, the matters of fairness discussed in paragraphs [25]-[27] were not irrelevant considerations, and it was reasonably available for the Deputy President to take them into account.

[25] We are not satisfied that the other matters raised in Ms Kaur’s appeal would render it in the public interest to grant permission to appeal. For the most part, Ms Kaur’s appeal grounds and submissions are expressions of her desire for a different result rather than genuine contentions of appealable error. We do not propose to address all of the specific matters raised by Ms Kaur beyond stating the following:

•  the mere fact that the result of the Deputy President’s decision being that Ms Kaur will be self-represented and Hartley will be represented by counsel does not manifest injustice or an unfair disadvantage to Ms Kaur, since (as Hartley submitted), s 596(2) clearly contemplates an outcome whereby one party is represented and the other is not;

•  there is no logical relationship between Ms Kaur’s allegation that the reason for her dismissal was false and fabricated and Hartley’s application for permission for legal representation;

•  the fact that Ms Kaur is self-represented, not legally qualified and speaks English as her second language are not matters which can be cured by the refusal of permission for legal representation to Hartley; and

•  the Deputy President’s reasons show a proper basis for her conclusion that the s 596(2)(a) criterion was satisfied, and no arguable contention of error in relation to that evaluative judgment is disclosed in Ms Kaur’s grounds of appeal or submissions. While the degree of complexity in the matter is not addressed directly in the Deputy President’s reasoning, it is referred to in her summary of the parties’ respective submissions and we consider a matter that she plainly took into account.

[26] The appeal does not otherwise raise any issue of novelty or general application. The decision is an interlocutory one and if, at the hearing, the grant of permission for legal representation to Hartley results (contrary to our expectation) in an unfair hearing process, that is capable of rectification in an appeal from the final decision.

[27] For the reasons stated, we are not satisfied that the grant of permission to appeal would be in the public interest. Nor, if we had a general discretion to grant permission to appeal, would we exercise it in Ms Kaur’s favour. Permission to appeal is therefore refused.

VICE PRESIDENT

Appearances:

Ms R Kaur on her own behalf.
Ms P Bindon of Counsel for the Respondent.

Hearing details:

2020.
Sydney (via video-link).

6 November.

Printed by authority of the Commonwealth Government Printer

<PR725010>

 1   [2020] FWC 4701

 2   Ibid at [18]

 3   Ibid at [28]

4 This is so because on appeal the Commission has power to receive further evidence, pursuant to s607(2); see Coal and Allied Operations Pty Ltd v AIRC [2000] HCA 47, 203 CLR 194, 99 IR 309 at [17] per Gleeson CJ, Gaudron and Hayne JJ

 5   See Kennedy v Qantas Ground Services Pty Ltd [2018] FWCFB 4552 at [10]-[11] 

6 O’Sullivan v Farrer [1989] HCA 61, 168 CLR 210 per Mason CJ, Brennan, Dawson and Gaudron JJ; applied in Hogan v Hinch [2011] HCA 4, 243 CLR 506 at [69] per Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; Coal & Allied Mining Services Pty Ltd v Lawler and others [2011] FCAFC 54, 192 FCR 78, 207 IR 177 at [44]-[46]

 7   [2010] FWAFB 5343, 197 IR 266 at [27]

8 Wan v AIRC [2001] FCA 1803, 116 FCR 481 at [30]

9 Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/Warkworth [2010] FWAFB 10089, 202 IR 388 at [28], affirmed on judicial review in Coal & Allied Mining Services Pty Ltd v Lawler [2011] FCAFC 54, 192 FCR 78, 207 IR 177; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663, 241 IR 177 at [28]

 10   Trustee for The MTGI Trust v Johnston [2016] FCAFC 140 at [82]

11 Warrell v Fair Work Australia [2013] FCA 291, 233 IR 335; Asciano Services Pty Ltd v Hadfield [2015] FWCFB 2618 at [19]; Calleri v Swinburne University of Technology [2017] FWCFB 4187 at [36]

 12   [2013] FCA 291, 233 IR 335