1
Fair Work Act 2009
s.394—Unfair dismissal
Ross Kennedy
v
Qantas Ground Services PTY LTD T/A Qantas Ground Services PTY
LTD, Qantas Group
(U2017/11691)
DEPUTY PRESIDENT KOVACIC CANBERRA, 28 MARCH 2018
Representation by lawyers and paid agents - permission for Respondents to be represented by
a lawyer refused.
[1] Mr Ross Kennedy (the Applicant) lodged an application under s.394 of the Fair Work
Act 2009 (the Act) which was received by the Fair Work Commission (the Commission) on 3
November 2017 alleging that the termination of his employment by Qantas Ground Services
Pty Ltd T/A Qantas Ground Services Pty Ltd, Qantas Group (QGS – the Respondent) on 2
November 2017 was unfair.
[2] On 13 November 2017, QGS gave notice of representative commencing to act (Form
F53).
[3] A conciliation conference before one of the Commission’s conciliators on 6 December
2017 failed to resolve the matter, with Mr Kennedy’s application subsequently allocated to
the Commission as presently constituted. The matter was listed for a mention and directions
hearing on 22 December 2017.
[4] In other developments, on 19 December 2017 Mr Kennedy lodged with the
Commission an application seeking several orders for the production of documents.
[5] At the mention and directions hearing Mr Kennedy objected to QGS being granted
permission to be represented by a lawyer. The mention and directions hearing concluded on
the basis that the Commission would determine the permission to represent issue prior to
considering Mr Kennedy’s application for orders to produce and programming his application
for hearing. Directions to that effect were issued on 22 December 2017, with the final
submissions on the permission to represent issue provided to the Commission on 29 January
2018. Both parties subsequently confirmed that they were content for the issue to be
determined on the papers, though QGS in its submissions requested the opportunity to be
heard in the event that the Commission was not prepared to grant it permission to be
represented. In view of that request and the Commission’s preliminary inclination not to grant
[2018] FWC 1818 [Note: An appeal pursuant to s.604 (C2018/2983) was
lodged against this decision - refer to Full Bench decision dated 8 August
2018 [[2018] FWCFB 4552] for result of appeal.]
DECISION
E AUSTRALIA FairWork Commission
https://www.fwc.gov.au/documents/decisionssigned/html/2018fwcfb4552.htm
[2018] FWC 1818
2
permission based on the parties’ written submissions, a telephone hearing was held on 15
March 2017.
[6] Permission was granted for QGS to be legally represented solely for the purpose of
that telephone hearing. Mr Jonathan Forbes of Counsel appeared for QGS, while Mr Kennedy
appeared on his own behalf. At the telephone hearing, Mr Kennedy contended that QGS in its
oral submissions had raised new matters and arguments which went beyond those canvassed
in its written submissions and Mr O’Neil’s statement. While QGS disputed this, other than in
respect of one decision1 it referred the Commission to in support of its submissions, the
Commission decided to provide Mr Kennedy the opportunity to review the transcript of the
hearing and provide further written submissions in respect of those aspects of QGS’ oral
submissions which went beyond its written submissions. Directions to that effect were issued
on 20 March 2018, with any further submissions to be filed by close of business on 27 March
2018.
[7] For the reasons set out below, I consider that the requirements of s.596(2) of the Act
have not been made out by QGS. Permission is therefore refused for QGS to be represented
by a lawyer in these proceedings.
The Applicant’s submissions
[8] Mr Kennedy objected to QGS being granted permission to be represented by a lawyer
for a number of reasons including that:
QGS was a large company with adequate in-house legal and human resources
expertise to represent itself in this case;
it would be unfair to him and he would be significantly disadvantaged were
permission to be granted;
granting permission would be contrary to the spirit of the Act;
QGS had failed to adequately raise complexities warranting the granting of
permission, adding that legal representation would likely protract and sideline the
Commission proceedings in respect of his application;
QGS had not raised any jurisdictional objections which would add any element of
complexity to the matter;
having regard to the decision in Jetstar Airways Pty Limited v Ms Monique
Neeteson-Lemkes2 (Jetstar) it should be relatively straightforward for the
Commission to determine inter alia whether the medical practitioner who undertook
his fitness for duty assessment was suitably competent and credible, whether the
medical practitioner was independent and impartial and whether the conclusions
drawn by the medical practitioner were reliable; and
drawing on the decision in King v Patrick Projects Pty Ltd3(King), QGS’ claim that
the matter was not routine as a result of the volume of material to be filed by the
parties in this case was not of itself sufficient to warrant the grant of permission.
[2018] FWC 1818
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[9] At the telephone hearing on 15 March 2018 Mr Kennedy questioned the basis on
which Mr Forbes appeared at the hearing. With particular regard to the issue of permission to
represent, Mr Kennedy highlighted that aspect of Mr O’Neil’s statement where he deposed
that QGS had access to nine in-house lawyers and pointed out that QGS’ former external legal
representative, who had represented QGS in Commission proceedings regarding his
application for an order to stop bullying, had in January 2018 taken up a role with Qantas.
[10] In his further written submissions Mr Kennedy reiterated a number of issues he raised
at the hearing of 15 March 2018 and sought to raise a new objection to permission being
granted on the basis of QGS’s former external legal representative taking up an employee
relations role with Qantas. Mr Kennedy also contended that QGS’ submissions at the hearing
involved unreasonable elaborations of existing arguments and matters that had largely been
undeveloped in its written submissions and Mr O’Neil’s statement and introduced
inappropriate and dangerous lines of argument. Mr Kennedy also opposed the alternative
proposition put by QGS at the hearing (see paragraph [13] below).
The Respondents’ submissions
[11] QGS submitted that for the reasons set out below the requirements of s.596(2) of the
Act were satisfied and that the Commission should therefore grant it permission to be
represented in these proceedings. The reasons cited by QGS included that:
the matter would involve a degree of legal and procedural complexity beyond that
associated with a typical unfair dismissal application, adding that the assistance of an
experienced and legally trained advocate would support the efficient resolution of
the matter and help confine the hearing to those matters relevant to the matter before
the Commission;
it had been dependent upon external legal support in managing various allegations
and applications brought by Mr Kennedy since at least early 2016;
the granting of permission would assist with the efficient and comprehensive
determination of Mr Kennedy’s application;
the resources needed to properly conduct this particular matter were beyond those
available to it as the resources required to conduct the matter would exceed those
required to conduct a typical unfair dismissal case;
it would be unfair to refuse QGS permission to be represented as without
representation it would be unable to represent itself in a manner that created a
“striking impression” or which was “powerful in effect”; and
Mr Kennedy had a degree of experience as an advocate which exceeded that of a
typical self-represented applicant.
[12] QGS’ submissions were supported by a statement by Mr Michael O’Neil, Qantas’
Head of Industrial Relations, Associated Airlines and Services. In short, Mr O’Neil deposed
that it was his belief that neither he nor any other Qantas Industrial Relations Manager was in
a position to effectively conduct these proceedings without the support and advocacy of
external legal representatives. More specifically, Mr O’Neil deposed that:
[2018] FWC 1818
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he was currently managing and/or supervising the conduct of a range of matters,
including several disputes brought under s.789 of the Act, two other unfair dismissal
applications and an appeal before a Full Bench of the Commission;
there were currently nine Industrial Relations Managers employed in Qantas
Industrial Relations Team, with those Managers responsible for managing the
industrial relationships between 16 different Qantas Group entities, upwards of 15
employee organisations and approximately 27,000 employees covered by 42
separate enterprise agreements;
the Qantas Industrial Relations Team relied heavily on the support and assistance of
external legal representation in the discharge of its responsibilities;
the Qantas Industrial Relations Team had since at least early 2016 been heavily
dependent on external legal support in managing a number matters relating to Mr
Kennedy;
he believed the degree of procedural and legal complexity associated with these
proceedings would be of a quantity and nature that the Qantas Industrial Relations
Team did not have the capacity to properly process and manage without the
assistance of external support;
even prior to the filing of materials, Mr Kennedy’s application had taken on a degree
of procedural and legal complexity beyond that typically involved in unfair dismissal
applications managed by the Qantas Industrial Relations Team, citing in particular
Mr Kennedy’s application for several orders to produce documents; and
the volume of materials likely to be introduced into these proceedings was of a
quantity that the Qantas Industrial Relations Team did not have the capacity to
properly manage in the light of its existing responsibilities.
[13] At the telephone hearing QGS submitted inter alia that:
while in its written submissions it relied on each of the grounds in s.596(2) of the
Act, the emphasis of its application really rested with s.596(2)(a) of the Act;
this was a really compelling case for permission being granted;
an objective assessment of the material before the Commission enabled the
Commission to conclude that this case was likely to be procedurally, factually and
legally complex and multi-dimensional and that having regard to those matters it
would be more efficient if permission to be represented were granted;
with regard to s.596(2)(a) of the Act, the question was not whether QGS could
represent itself but rather whether the matter could be dealt with more efficiently
with representation as opposed to without representation;
the matter would be dealt with more efficiently were permission granted because of
what an experienced legal practitioner who was familiar with the jurisdiction could
bring to the situation, adding that where experienced legal representation was
[2018] FWC 1818
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involved such involvement was more often of assistance than hindrance and
referring to Deputy President Sam’s comments to that effect in Applicant v
Respondent4;
the fact that QGS employs lawyers should not lead to the conclusion that they are the
most appropriate and best qualified lawyers for a matter of this kind or that they are
a free and available resource;
Mr Kennedy had been involved in a fairly large body of litigation, with his
involvement in that litigation attracting significant adverse and critical comment
from judges and members of the Commission5;
there was nothing to lead the Commission to the view that by allowing
representation that the matter would become more complicated;
no unfairness would be visited upon Mr Kennedy were permission granted; and
in the alternative, the Commission could grant permission for QGS to be represented
in respect of Mr Kennedy’s application for orders to produce and reserve its decision
in relation to representation generally.
The statutory framework
[14] Section 596 of the Act deals with the issue of representation by lawyers and paid
agents. The relevant provisions are set out below:
“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.
[2018] FWC 1818
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…
(3) 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;
(v) that is representing the person; or
(c) is a bargaining representative.”
Consideration of the issues
[15] Justice Flick discussed the application of s.596 of the Act in Warrell v Walton6
(Warrell) as follows:
“[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 …”
s.596(2)(a) it would enable the matter to be dealt with more efficiently, taking into account
the complexity of the matter
[16] Based on the material presently before the Commission and the two hearings held to
date in respect of Mr Kennedy’s application, it is clear that there are a number of factual
[2018] FWC 1818
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matters in dispute in this case and that those matters are likely to be strongly contested. For
instance, as foreshadowed in Mr Kennedy’s submissions regarding permission to represent, I
anticipate considerable debate regarding the medical evidence which QGS contends in its
Form F3 – Employer Response to Unfair Dismissal Application supports that there was a
valid reason for Mr Kennedy’s dismissal. However, the prospect of such disputed matters
being hotly contested does not of itself make the matter more complex. The absence of any
particular legal complexities or jurisdictional objections associated with Mr Kennedy’s
application is also a relevant consideration in the context of considering whether or not
permission to be represented should be granted.
[17] While I acknowledge that there exists the potential for significant volume of materials
to be put before the Commission in this case, as noted by the Full Bench in King this is not of
itself sufficient to warrant the grant of permission to be represented7.
[18] Finally, I note that Qantas’ Industrial Relations Team has among its ranks a number of
lawyers. It is unclear to me why, were any of those lawyers to appear for QGS in this matter,
they would be any less able than external legal representation to assist the Commission in
ensuring that the matter was dealt with as efficiently as possible.
[19] For all the above reasons, I am not satisfied that granting QGS permission to be
represented would enable the matter to be dealt with more efficiently.
s.596(2)(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
s.596(2)(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
[20] QGS posited that:
the Qantas Industrial Relations Team was heavily dependent on the support of
external legal representation;
the resources needed to properly conduct this matter were beyond those available to
it if permission was not granted;
in the absence of permission being granted it would be unable to represent itself in a
manner that created a “striking impression” or which was “powerful in effect”;
no unfairness would be visited upon Mr Kennedy were permission to be represented
granted; and
it would be unfair to not allow it to be represented largely on the basis that Mr
Kennedy had a degree of experience as an advocate that exceeded that of a typical
self-represented party.
[21] Having regard to the above, I am not satisfied that the grounds in s.596(2)(b) and (c)
have been made out. While I accept that the Qantas Industrial Relations Team frequently
utilises external legal assistance, it failed in my view to make out its contention that in the
absence of representation it would be unable to represent itself in a manner that creates a
[2018] FWC 1818
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“striking impression” or is “powerful in effect”. Similarly, QGS did not, as required by
s.596(2)(c) of the Act, establish any unfairness to it were permission to be represented not
granted taking into account fairness between it and Mr Kennedy in circumstances where Mr
Kennedy is a self-represented party, albeit with some experience in representing himself, who
is not legally qualified.
[22] Having regard to the above analysis and the decision in Warrell, I am not satisfied that
the grounds in s.596(2) have been made out by QGS. Accordingly, there is no basis for the
Commission to grant QGS permission to be represented in these proceedings.
[23] Finally, I am not attracted to the alternative approach proposed by QGS at the hearing
of 15 March 2018, i.e. to allow QGS to be represented for the purposes of Mr Kennedy’s
application for orders to produce (see paragraph [13] above). While it is true that the
application for orders to produce cover a large number of documents, I note that this is not
unusual in unfair dismissal matters and particularly where medical reasons are a factor in the
matter. Further, I do not consider QGS’ capacity to object to aspects of the orders sought
would in any way be prejudiced in the absence of legal representation.
Conclusion
[24] For all the above reasons, I consider that the requirements of s.596(2) of the Act have
not been made out by QGS. Permission is therefore refused for QGS to be represented by a
lawyer.
[25] As mentioned at the hearing on 15 March 2018, the matter will now be listed for
conference to deal with Mr Kennedy’s application for order to produce and for mention and
directions to set a timetable to deal with his unfair dismissal application.
Appearances:
R. Kennedy on his own behalf
J. Forbes for the Respondent
Telephone hearing:
2018
Canberra and Melbourne
March 15
Printed by authority of the Commonwealth Government Printer
PR601554
THE FAIR WORK COMA AUSTRALIA DEPUN PRESIDENTS NO THE
[2018] FWC 1818
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1 New South Wales Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation
Office [2014] FWCFB 1663
2 [2013] FWCFB 9075
3 [2015] FWCFB 2679
4 [2014] FWC 2860 at [17]-[22]
5 Mr Ross Kennedy v Commonwealth of Australia as represented by the Department of Industry, Innovation, Climate
Change, Science, Research and Tertiary Education [2014] FWCFB 3530 at [21], [27], [43]-[47]; Kennedy v Secretary,
Department of Industry [2015] FCA 714 at [19]-[35]; Kennedy v Secretary, Department of Industry (No 2) [2015] FCA
884 at [10]; Kennedy v Secretary, Department of Industry [2016] FCA 485 at [8]-[9], [13], [16], [24], [60]; Kennedy v
Secretary, Department of Industry (No 2) [2016] FCA 746 at [4], [10], [39], [43], [49], [51]; Kennedy v Secretary,
Department of Industry [2016] FCA 1251 at [1], [7]-[23], [69]-[78], [87], [103], [107], [121]; Kennedy v Secretary,
Department of Industry (No 3) [2016] FCAFC 149 at [15], [75]-[77].
6 [2013] FCA 291
7 [2015] FWCFB 2679 at [17]
