1
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Ralf Rodl
v
QANTAS Airways Pty Ltd
(U2018/193)
COMMISSIONER RIORDAN SYDNEY, 5 APRIL 2018
Application for an unfair dismissal remedy – legal representation.
[1] Mr Ralf Rodl (the Applicant) lodged an application for an unfair dismissal remedy on
5 January 2018, alleging that he had been unfairly dismissed by Qantas Airways Pty Ltd (the
Respondent) on 15 December 2017.
[2] The Fair Work Commission (the Commission) convened a Conciliation and Directions
Conference on 6 March 2018. Directions were issued at the conclusion of that Conference for
both the substantive hearing and in relation to the Respondent’s application to be represented
by a lawyer in the proceedings.
[3] The Respondent formally filed its Form F53 Notice of Representative Commencing to
Act on 13 March 2018.
[4] The Applicant has objected to the Respondent being legally represented in the
proceedings.
[5] This decision only deals with the issue of the Respondent being legally represented in
the proceedings.
Statutory Provisions
[6] Section 596 of the Fair Work Act, 2009 (the Act) states:
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 FWA (including by making an application or
submission to FWA on behalf of the person) by a lawyer or paid agent only with the
permission of FWA.
(2) FWA may grant permission for a person to be represented by a lawyer or paid
agent in a matter before FWA only if:
[2018] FWC 1935
DECISION
E AUSTRALIA FairWork Commission
[2018] FWC 1935
2
(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 FWA 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) FWA'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 Fair
Work (Registered Organisations) Act 2009 ; or
(iii) a peak council; or
(iv) a bargaining representative;
that is representing the person; or
(c) is a bargaining representative.
Section 577
Performance of functions etc. by FWC
The FWC must perform its functions and exercise its powers in a manner that:
(a) is fair and just; and
(b) is quick, informal and avoids unnecessary technicalities; and
[2018] FWC 1935
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(c) is open and transparent; and
(d) promotes harmonious and cooperative workplace relations.
Submissions
[7] The Respondent sought permission to be represented in the proceedings in accordance
with section 596(2)(a) of the Act, on the basis that if it were legally represented, then the
matter would be dealt with more efficiently, especially due to the complexity of the matter.
[8] The Respondent submitted that the hearing will require a detailed analysis and
assessment of:
a) the medical evidence used by the Respondent to terminate the Applicant;
b) the inherent requirements of the Applicant’s former role;
c) the cross examination of the Applicant and any other witnesses;
d) whether the Respondent has a valid reason to terminate the applicant;
e) the relevant legal test to be applied by the Commission in relation to medical
evidence; and
f) the relevance of voluminous information that has been submitted by the Applicant
attached to his application.
[9] Further, the Respondent submitted that, whilst the Applicant is unrepresented, the
Applicant has demonstrated an ability to adequately represent himself in the proceedings.
[10] The Respondent also submitted that if the Respondent is represented then the parties
will focus on relevant issues and assist to shorten the proceedings.
[11] The Applicant, in general, opposes the submissions of the Respondent in relation to its
application for permission to be represented by Ashurst Australia.
[12] The Applicant took exception to the claim by the Respondent that the Applicant has
demonstrated an ability to adequately represent himself.
[13] The Applicant stated that he thought this statement was subjective and unproven on
the basis that:
a) he has never met the person who made the statement;
b) he does not have a legal background;
c) he does not have any legal experience; and
d) English is his second language.
[14] The Applicant submitted that “balance and fairness” is achieved when both parties are
equally represented.
[15] Finally, the Applicant submitted that efficiency in the courtroom is not the sole
domain or capacity of legal representatives.
[2018] FWC 1935
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Consideration
[16] I have taken into account the submissions of the parties in relation to this issue. The
fact that an issue has not been identified in this decision does not mean that it has not been
considered.
[17] The principal case in relation to section 596 of the Act, is a decision of the Federal
Court of Australia in Warrell v Fair Work Australia1, where Flick J held:
“[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”.
[25] 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. The legislative desire for informality and a
predisposition to parties not being represented by lawyers emerges, if not from the
terms of s 596, from the terms of the Explanatory Memorandum to the Fair Work Bill
2008 which provided in relevant part as follows:
1. FWA is intended to operate efficiently and informally and, where
appropriate, in a non-adversarial manner. Persons dealing with FWA would
generally represent themselves. Individuals and companies can be represented
by an officer or employee, or a member, officer or employee or an organisation
of which they are a member, or a bargaining representative. Similarly, an
organisation can be represented by a member, officer or employee of the
organisation. In both cases, a person from a relevant peak body can be a
representative.
2. However, in many cases, legal or other professional representation should
not be necessary for matters before FWA. Accordingly, cl 596 provides that a
person may be represented by a lawyer or paid agent only where FWA grants
permission.
...
[2018] FWC 1935
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1. In granting permission, FWA would have regard to considerations of
efficiency and fairness rather than merely the convenience and preference
of the parties.”
(my emphasis)
[18] I have taken this into account.
[19] I have taken into account the comments by Deputy President Sams in the cases
referred to by the Respondent.
[20] I note that the Respondent has relied exclusively on section 596(2)(a) of the Act in
relation to its application, ie “it would enable the matter to be dealt with more efficiently,
taking into account the complexity of the matter”.
[21] I do not accept the proposition that the Applicant’s conduct in these proceedings
identifies a “demonstrated ability” to adequately represent himself at the hearing. The
Applicant’s conduct is typical of a self-represented party who traditionally submit voluminous
material in an attempt to prove that they were unfairly dismissed. I have taken this into
account.
[22] I fail to comprehend how the granting of leave for the Respondent to be represented
will have any effect on focusing the Applicant’s submissions onto the relevant issues. I have
taken this into account.
[23] I have taken into account that the Respondent is a large employer who has, from my
long experience in dealing with the Respondent, a very well-resourced and competent IR/HR
department.
[24] I have taken into account that the Respondent’s in-house specialists would have
undertaken a detailed examination of the available medical evidence prior to the Applicant’s
termination as well as the inherent requirements for his role.
[25] I have taken into account that the Commission can ask any pertinent questions of any
witness if any party, whether self-represented or otherwise, has not addressed a relevant issue.
[26] I have taken into account that the Commission is obligated to take into account all of
the evidence and submissions in relation to any assessment of section 387 of the Act.
[27] I have taken into account the role of the Commission in making a determination on the
evidentiary relevance of any submission or material.
[28] I have taken into account that the Respondent has not pressed, nor does it satisfy, any
pragmatic assessment of section 596(2)(b) and (c) of the Act.
[29] I have taken into account section 577 of the Act, which requires the Commission to act
in a manner which is fair, just and informal.
[2018] FWC 1935
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Conclusion
[30] Whilst I acknowledge that the amount of material which will be filed by the parties in
this matter will be excessive, this volume does not mean that the matter is complex.
[31] I am not satisfied that the use of legal representation by the Respondent necessarily
translates into the efficient conduct of the hearing. Legal representatives, from my experience,
can be equally or even more verbose then self-represented parties.
[32] I am satisfied that it would not be unfair to deny the Respondent the right of
representation after taking into account the lack of previous experience of the Applicant in
any legal or industrial matter.
[33] I am satisfied that the Respondent is more than capable of representing themselves in
these proceedings without the assistance of an external representative. The Respondent has a
team of highly skilled and competent HR practitioners that are directly employed. In reality,
this case is a fairly straightforward unfair dismissal case.
[34] Following the obiter in Warrell and in accordance with section 577 of the Act, I find
that the Respondent has failed to satisfy the requirements of section 596 of the Act.
[35] For the reasons stated above, the application by the Respondent for permission to be
represented by a lawyer is refused.
COMMISSIONER
Printed by authority of the Commonwealth Government Printer
PR601708
1 [2013] FCA 291, 233 IR 335
