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[2013] FWC 2340
DECISION
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Dr Nitya Karmakar
v
Australian Campus Network Pty Ltd
(U2012/10464)
COMMISSIONER CAMBRIDGE SYDNEY, 17 APRIL 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 Dr Nitya Karmakar
(the applicant). The respondent employer is Australian Campus Network 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.
[3] The application was filed on 12 June 2012 and the employer filed a response on 29
June 2012. The employer’s response included mention of some jurisdictional objections taken
against the application. The matter was the subject of conciliation held on 5 July 2012. There
appeared to have been some success achieved at the conciliation and a result of “settled” was
recorded which led to the file being closed on 19 July 2012.
[4] On 20 December 2012, the applicant apparently advised the Conciliator who had dealt
with the matter that the settlement had collapsed and the applicant requested that the matter
proceed to Arbitration. On 8 February 2013, the file result of “settled” was cancelled. On 8
March 2013, the matter was listed for Hearing in respect to the jurisdictional objections taken
by the employer. The Hearing regarding the jurisdictional objections has been fixed to
commence at not before 11:00am on 19 April 2013.
[5] On 22 March 2013, Minter Ellison Lawyers filed a Notice of Representative
Commencing to Act on behalf of the employer. On 24 March 2013, the applicant formally
raised objection to the employer being represented by a lawyer. This objection was advanced
on the basis that the Commission should refuse permission for the employer to be represented
by a lawyer because the relevant provisions of section 596 of the Act operated so as to
provide proper basis for such refusal.
AUSTRALIA FAIR WORK COMMISSION
[2013] FWC 2340
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[6] The applicant has provided a further written submission dated 12 April 2013, which
maintains the objection to the Commission granting permission for the employer to be
represented by a lawyer. The employer has made a written outline of submissions in support
of permission being granted for it to be represented by a lawyer. The parties have confirmed
that it is agreed, that the Commission should determine the question of whether the employer
should be granted permission to be represented by a lawyer, on the basis of the written
documentation and without need for any Hearing.
[7] Consequently, I have carefully examined and considered the respective written
submissions of the parties as the basis for this Decision.
Consideration
[8] The question of representation in proceedings before the Commission is governed by
section 596 of the Act which is in the following terms:
“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).
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(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.”
[9] 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 Walton1 (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, in particular, the criteria involving efficiency
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.
[2013] FWC 2340
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Complexity/Efficiency - Subsection 596 (2) (a)
[13] The employer contended 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 jurisdictional arguments raised by the employer. The jurisdictional
issues were said to involve complex factual circumstances and a number of complex legal
issues including the matter of earlier proceedings which had been taken by the applicant under
a different section of the Act (s.365). Alternatively, the applicant rejected the complexity
attributed to the matter by those representing the employer.
[14] In respect of the issue of complexity, there appears to be some unusual aspects
associated with the jurisdictional objections taken by the employer, particularly that objection
relating to the issue described as multiple applications. The other issues which involve the
employer’s jurisdictional objections deal with matters that are regularly subject of
jurisdictional determination. For instance, whether an application is made within time,
whether there was actually a dismissal, and whether the applicant is a person protected from
unfair dismissal, are all jurisdictional issues that routinely require determination.
[15] Consequently, 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 (2) (b)
[16] The employer did not specifically advance an argument that it was unable to represent
itself effectively without a lawyer. Instead it submitted that the applicant had had the benefit
of advice and assistance from an industrial officer and it would be unfair to restrict the
employer to representation by a person without legal qualifications.
[17] 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 (2) (c)
[18] 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 from the involvement of an
industrial officer as a representative or assistant to the applicant. The applicant has submitted
that it would be unfair to permit the employer to be represented by a lawyer. The applicant
has stated that the previous involvement of the industrial officer was as a friend and she “is no
longer associated with this issue at all.” I conclude from this statement that the applicant is to
appear unrepresented in further proceedings.
[19] Consequently, 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
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for the absence of a fair and just Hearing as was identified by the Federal Court Judgment in
the Warrell case.
[20] 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.
[21] 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.
COMMISSIONER
Printed by authority of the Commonwealth Government Printer
Price code C, PR535763
1 Warrell v Walton [2013] FCA 291.
JAL OF F THE ORK COMMISSION Hra
