1
Fair Work Act 2009
s.394—Unfair dismissal
Joseph Costelloe
v
Origin Energy Resources Ltd T/A Origin Energy
(U2016/13231)
COMMISSIONER BISSETT MELBOURNE, 23 MAY 2017
Application for permission to be represented – permission granted.
[1] Mr Joseph Costelloe has made an application to the Fair Work Commission (the
Commission) seeking relief from unfair dismissal pursuant to s.394 of the Fair Work Act
2009 (FW Act). Mr Costelloe was employed by Origin Energy Resources Ltd T/A Origin
Energy (Origin Energy). Mr Costelloe’s application was made outside the 21 day time limit
prescribed by the FW Act. His application for an extension of time was rejected by decision1
of the Commission. That decision was subsequently overturned on appeal2 and is now before
me for reconsideration.
[2] Origin Energy seeks permission pursuant to s.596(2) of the FW Act to be represented
in the proceedings. Mr Costelloe objects to permission being granted.
[3] In accordance with directions issued on 7 April 2017 each party has filed submissions
on the question of whether permission should be granted.
Legislation and approach to the question
[4] Section 596 of the Fair Work Act 2009 (FW Act) provides:
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
[2017] FWC 2807
DECISION
E AUSTRALIA FairWork Commission
[2017] FWC 2807
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(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.
[5] In Emily Oratis v Melbourne Business School3 I found as follows:
[13] It is well established that in order to exercise the discretion available to the
Commission to grant permission to be represented one of the conditions in s.596(2)
must first be met. Such condition having been met does not them make representation
automatic but still requires the exercise of discretion on the part of the Commission.
[2017] FWC 2807
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[14] In Warrell v Walton4 Flick J said:
[24] A decision to grant or refuse “permission” for a party to be represented
by “a lawyer” pursuant to s 596 cannot be properly characterised as a mere
procedural decision. It is a decision which may fundamentally change the
dynamics and manner in which a hearing is conducted. It is apparent from the
very terms of s 596 that a party “in a matter before FWA” must normally
appear on his own behalf. That normal position may only be departed from
where an application for permission has been made and resolved in accordance
with law, namely where only one or other of the requirements imposed by s
596(2) have been taken into account and considered. The constraints imposed
by s 596(2) upon the discretionary power to grant permission reinforce the
legislative intent that the granting of permission is far from a mere “formal”
act to be acceded to upon the mere making of a request. Even if a request for
representation is made, permission may be granted “only if” one or other of the
requirements in s 596(2) is satisfied. Even if one or other of those requirements
is satisfied, the satisfaction of any requirement is but the condition precedent to
the subsequence exercise of the discretion conferred by s 596(2): i.e., “FWA
may grant permission...”. The satisfaction of any of the requirements set forth
in s 596(2)(a) to (c) thus need not of itself dictate that the discretion is
automatically to be exercised in favour of granting “permission”.
[6] It is therefore necessary that I consider, in the first instance, if any of the conditions set
out in s.596(2)(c) have been met.
The matter could be dealt with more efficiently given the complexity of the matter
[7] In support of its application Origin Energy submits:
a. Mr Costelloe has filed extensive material including medical information,
correspondence with lawyers, correspondence in relation to his workers’
compensation claim, and material in relation to a concurrent claim in the
Queensland Industrial Relations Commission;
b. Many of the documents are known to Origin Energy because of various
proceedings brought against it by Mr Costelloe and it would be unreasonable
for Origin Energy’s staff to read and assess the material for relevance;
c. It is likely Mr Costelloe and any witnesses he chooses to call including his
treating doctors will need to be cross-examined;
d. Granting permission to Origin Energy will assist in identifying matters relevant
to decisions to be made by the Commission in circumstances where the factual
matrix is complex and admissibility of documents is questionable;
e. Mr Costelloe has displayed a disposition and behaviour towards Origin
Energy’s representative, Ms Adele de Wit, which adds further complexity to
the matter. In correspondence forwarded to the Commission Mr Costelloe said
of Ms de Wit “Ms De Wit – how do you live with yourself with all of the
knowledge and evidence of what happened to me???”
[2017] FWC 2807
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[8] For these reason Origin Energy says the matter could be dealt with more efficiently
given the complexity of the matter if permission was granted.
[9] Mr Costelloe submits, both in respect of the specific grounds and on the broader
question of whether the discretion should be exercised to grant permission, that:
a. Of the 550 pages or so submitted by him only about 100 pages (identified in
the submission on representation) are relevant to the question of exceptional
circumstances. This is based on advice from the Commission “that a
presumption of a dismissal is accepted” so that material as to the question of
whether or not there was a dismissal is not necessary. A further 250 pages of
the material submitted is to counter Origin Energy claims that he sat on his
hands from December 2015 to October 2016 and that he only chose to pursue
an application for unfair dismissal with the Commission after he lost his
workers’ compensation claim;
b. The matter will not be dealt with efficiently if permission is granted. The
requirement that the Commission “perform its functions…in a manner that is
fair and just, and is quick, informal and avoids unnecessary technicalities; and
is open and transparent” (s.577(a)-(c)) will be at risk if permission is granted;
c. Legal representation of Origin Energy to date has caused substantial delays;
d. Legal representation of Origin Energy to date has added “complexity, work
and time to this matter” which requires the Commission to decide if ill-judged
legal advice and ill-health constitute exceptional circumstances.
e. No context is provided to suggest that admissibility and relevance of
documentary material creates complexity;
f. Origin Energy staff or legal representatives can assist in working through the
documentation;
g. The grant of permission will formalise and complicate the matter.
h. Origin Energy is a large company with over 6,000 employees, It is to be
expected it has or should have staff who can deal with this matter before the
Commission. It should not be allowed to hide behind its legal team;
i. Origin Energy staff or legal representatives can assist in working through the
documentation;
j. Ms de Wit is more than capable of handling the matter;
k. There is no issue with Ms de Wit providing evidence and examining herself
[2017] FWC 2807
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It would be unfair as the party could not represent itself effectively
[10] Origin Energy submits that it would be unfair to require Ms de Wit to represent Origin
Energy as she is not legally trained and may be called as a witness in the proceedings. It
submits that “[t]he legal skills required to deal with the voluminous material and cross-
examine [Mr Costelloe]…in relation to the issues [Origin Energy] identifies in respect of the
material filed to date…is beyond the skills and experience of the responsible employee of
[Origin Energy]. Further, it would be impractical for [Ms de Wit]…to examine herself in the
event that she is required to give evidence.”
[11] Mr Costelloe relies on the submissions outlined above.
Consideration
[12] In Gilchrist and Another v Habiku Pty Ltd T/A The Daily Dose5 Wilson C said:
[13] In respect of s.596(2)(a), even if legal representation would enable a matter to
be dealt with more efficiently, a lack of complexity may still mean that permission is
refused.6 Sheer volume of documents or the existence of extraneous issues does not
equate to complexity.7 While the consideration of complexity must be treated as a
matter of significance in consideration of this criterion, ultimately the issue is whether
the grant of permission would enable the matter to be dealt with more
efficiently.8 There may be many grounds for a consideration of “efficiency” and
familiarity with the subject matter, the conceptualisation and organisation of argument
in the statutory context and marshalling of relevant materials may be matters that
assist in the efficient conduct of the hearing of a matter, as may the increased alacrity
with which cross-examination may be carried out, as well as familiarity with the Act
and authorities in the context of a jurisdictional question.9 The expertise and
familiarity with the issues before the Commission of human resource practitioners or
in-house counsel may also be relevant.10
[13] In the first instance I am satisfied that the matter before me is complex. Whilst an
application for an extension of time would not ordinarily attract such a conclusion it is evident
from the history of this matter, the length of time since Mr Costelloe left his employment
(December 2016), his interactions with at least 15 law firms, his now reliance on medical
evidence to justify “exceptional circumstances” and his correspondence with the Commission
and broader claims against Origin Energy that this case is not straight forward. In addition is
the history of claims by Mr Costelloe against Origin Energy and what can only be described
as a fraught relationship between Mr Costelloe and his former employer that has its roots in
matters that occurred whilst he was still employed by it.
[14] Further, I am not satisfied that Mr Costelloe’s narrowing of the documents he says he
relies on (from the 550 pages initially filed with the Commission to now, apparently
350 pages not numbered or indexed) resolves any issue of complexity in relation to the
material he has filed. Many of the documents filed have extensive notations on them
(presumably although not definitively) made by Mr Costelloe, some of which may have been
made as a proxy to submissions as to the veracity of the documentation – although I should
stress that this is not clear from the notations or any material filed by Mr Costelloe. The extent
to which the documentation should be accepted or relied on by the Commission will
inevitably be at issue in the proceedings.
[2017] FWC 2807
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[15] Mr Costelloe has had extensive communication with my chambers (appropriately
copied to Origin Energy) as to how he considered his application (including that for unfair
dismissal) should be dealt with by me. He was advised by my chambers that the Commission
“may, for example, for the sake of determining the extension of time only, assume that you
were dismissed and that your dismissal was the date of resignation.” That is not an
unreasonable course to take in this case where the date of purported dismissal will not have
any material effect on whether or not an extension of time to make the application is required.
There is no dispute as to the date Mr Costelloe ended employment with Origin Energy. His
application for unfair dismissal to the Commission was made some seven or so months later.
This advice was provided in an effort to put a stop to Mr Costelloe’s persistent
communication with the Commission as to how the matter should be dealt with.
[16] The matter of complexity is something that must be decided on the circumstances of
the matter before the Commission. That other, apparently more complex, matters have
resulted in permission being granted to a party to be represented does not mean that the matter
currently before the Commission is not complex. Complexity arises in many different ways in
a matter.
[17] I have carefully considered the submissions of both parties. For the reasons outlined
above I am satisfied that the extensive documentation and the state it is in, the relevance of
this to the matter at issue, the nature of the relationship between Mr Costelloe and Origin
Energy and the history of matters between them combine to create a level of complexity not
often found in such matters. In these circumstances I am satisfied that legal representation
may result in this matter being dealt with efficiently given that complexity.
[18] I acknowledge those sections of the FW Act relied on by Mr Costelloe and his
concerns as to the matter being dealt with inefficiently and in too formal a manner if
permission was granted. The provisions which provide for the grant of permission need to be
balanced against those sections of the Act identified by Mr Costelloe. The condition I need to
be satisfied of is whether the matter could be dealt with more efficiently given the complexity
of it if permission was granted. In making my decision it is not the intention that this gives
rise to inefficiencies or unnecessary formality.
[19] I have found that there is complexity in the matter. Whilst I have, in other matters,
expressed the view that efficiency is not automatic with the grant of permission, I am satisfied
that this matter, given its lengthy gestation and the questions around the material relied on,
could be dealt with more efficiently with experienced legal representation.
[20] Having decided that the circumstances in s.596(2)(a) are satisfied it is not necessary
for me to consider the submissions made with respect to s.596(2)(b). I therefore make no
specific findings but would observe that it is my expectation that an organisation the size of
Origin Energy could reasonably be expected to have staff in its corporate area capable of
dealing with a matter such as this in the Commission.
Should permission be granted
[21] Being satisfied that the matter could be dealt with more efficiently, taking into account
the complexity of the matter, there still remains the question as to whether I should grant
permission to Origin Energy to be represented.
[2017] FWC 2807
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[22] In this case I am satisfied that I should exercise my discretion and grant permission to
Origin Energy to be represented. In deciding to grant permission the purpose of legal
representation is not so as to make the matter more formal than necessary and not to have it
drag out for longer than is necessary. In this respect the hearing date was set at Mr Costelloe’s
behest (as opposed to an earlier date suggested by me). There is nothing to suggest that the
legal representative of Origin Energy has caused complexity or the addition of time to the
matter.
[23] Permission is therefore granted.
COMMISSIONER
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Endnotes:
1 Joseph Costelloe v Origin Energy Resources Limited T/A Origin Energy, [2017] FWC 214.
2 Joseph Costelloe v Origin Energy Resources Limited T/A Origin Energy, [2017] FWCFB 2023.
3 [2014] FWC 2838.
4 [2013] FCA 291.
5 [2017] FWC 2416.
6 King v Patrick Projects Pty Ltd [2015] FWCFB 2679 [15].
7 Ibid [17].
8 Singh v Metro Trains Melbourne [2015] FWCFB 3502 [16].
9 Smith v James Cook University [2016] FWC 6010, [6]–[7].
10 Ibid [18].
THE FAIR WORK MMISSION THE SEAL
