1
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Ms Kellie Smith
v
Australian Leisure & Hospitality Group Pty Limited
(U2018/12783)
DEPUTY PRESIDENT ASBURY BRISBANE, 21 JUNE 2019
Application for an unfair dismissal remedy – s. 596 Representation by lawyers and paid
agents – Complex jurisdictional objection – Legal representation would allow the matter to
be dealt with more efficiently taking into account its complexity – Fairness does not override
efficiency considerations based on complexity in the present case – Permission for the
Respondent to be represented by a lawyer granted.
Background
[1] Ms Kellie Smith applies to the Fair Work Commission (the Commission) under s. 394
of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy in respect of her alleged
dismissal by the Australian Leisure & Hospitality Group Pty Limited (ALH Group). This
decision relates to an application made by ALH Group for permission to be represented by Mr
Andrew See of Counsel at the hearing of Ms Smith’s application. Ms Smith opposes the
application made by ALH for permission for legal representation.
[2] At a mention on 1 April 2019, the parties were directed to file and serve submissions
and other material in relation to the question of whether permission for the Respondent to be
represented by a lawyer should be granted. The parties were informed in an email on 14 May
2019 that if they wished to be heard in relation to the matter of legal representation they
should advise the Commission by 4.00 pm on 15 May 2019 and that in the absence of advice
the matter would be determined on the basis of the material on the file.
[3] ALH Group filed submissions in support of permission being granted for it to be
legally represented at the hearing. ALH Group also filed an affidavit of Mr Ezra Pyers,
Human Resources Business Partner. Ms Smith filed submissions in opposition to permission
being granted and tendered a number of documents in relation to Mr Pyers’ professional
qualifications. I have had regard to all of that material.
[4] Pursuant to section 596 of the Act a person may be represented in a matter before the
Commission by a lawyer or paid agent only with permission of the Commission. Section 596
of the Act provides as follows:
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DECISION
E AUSTRALIA FairWork Commission
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“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).
(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.”
ALH Group’s submissions and evidence
Section 596(2)(a)
[5] ALH Group submits that in the present case representation is not simply a matter of
preference but one of efficiency and effectiveness having regard to the complexity of the case.
The Applicant contends that she was constructively dismissed by being forced to resign by the
employer as a consequence of being denied regular hours of work based on her casual
contract of employment. The following issues have been identified as being critical and
complex by ALH Group:
Has there been a constructive dismissal?
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Can a casual worker claim constructive dismissal based on a reduction of working
hours, in the absence of any guaranteed minimum weekly hours of work?
Can the Commission imply terms into the contract of employment of a casual
employee, where otherwise the law provides that each engagement is a discrete and
separate period of employment?
[6] ALH Group submits Ms Smith’s application poses complex and significant legal
issues, the consequences of which have a potentially wide ranging impact on the operation of
the Respondent. These issues are said to arise out of the decisions in Workpac v Skene1 and
City of Sydney RSL and Community Club Limited v Balgowan2 and need to be considered in
the present case.
[7] ALH also submits that the Commission is not required to assess whether an internal
resource of the Employer could represent it adequately, but whether having regard to all
relevant facts and factors the Commission can undertake its task more efficiently if ALH
Group’s legal representative was granted permission to appear.
[8] ALH Group also submits that s.596(2)(a) requires the Commission to turn its mind to
the question as to whether allowing it to be legally represented would enable ALH Group’s
case to be dealt with more efficiently and whether in turn, this would allow the matter as a
whole to be dealt with more efficiently. Conversely, ALH Group submits the Commission
should consider whether the entire matter can be dealt with more efficiently if the
representative creates more efficiency in the management of ALH Group’s case, including the
assistance that may be provided to the Commission by virtue of clarification of submissions,
guiding of witnesses and summarising and arguing the merits of the case and making
submissions on points of law.
Section 596(2)(b)
[9] ALH Group submits that although it is a large organisation, it is unable to represent
itself effectively in the proceedings. In support of this assertion, ALH Group relies on the
evidence of Mr Pyers who states that he does not believe that he would be able to represent
ALH Group effectively.
[10] Mr Pyers states that the he has relied on external providers of employment relations
advice and advocacy for matters arising in Queensland and New South Wales, and that the
same is true of ALH Group’s National Human Resources Manager. Mr Pyers also states that
he is the sole person responsible for providing human resources advice for approximately
5600 people, and that this “lean model” provides little capacity for hiring in-house specialists
for industrial and employment law, and further that he has little opportunity to dedicate the
time and resources required to address such matters or to be technically proficient in industrial
and employment law. He further states that he has no experience in representing the ALH
Group in claims of unfair dismissal, and would not be able to assist the Commission as
efficiently as a legal representative as he is not as proficient in putting forward arguments or
clarifying legal submissions.
[11] ALH Group refers to the decision of Senior Deputy President Richards in
Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied
Services Union of Australia (CEPU) v UGL Resources Pty Limited (Project Aurora) which
provides as follows:
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“In the context used in the s.659(2)(b) of the Act, the adverb “effectively” is used to condition the verb
“to represent”. Thus, a person must be unable to represent himself, herself or itself effectively in order
for the requisite permission to be granted. It seems sufficiently clear that Parliament did not intend that
permission to be represented be granted when a person is unable to be represented “satisfactorily”,
“sufficiently” or “adequately” etc. These are not the adverbs that Parliament has put to work in
s.596(2)(b) of the Act. Rather, the adverb performing the conditioning work upon the verb “to
represent” in s.596(2)(b) of the Act is “effectively”.
It appears, then, that before permission to be represented can be granted, a person must be unable to
represent himself, herself or itself effectively, and following the plain language definitions of the
Macquarie Dictionary (Revised Third Edition) and the Australian Concise Oxford Dictionary (Third
Edition), this means the person must be unable to represent himself, herself or itself in a manner that
creates a “striking impression”, or which has an “impressive” effect or which is “powerful in effect”.
In this definitional context, it might not be unusual for a person to be unable to represent himself,
herself or itself “effectively”.” 3
[12] ALH Group submits that given the complexity involved in this matter, Mr Pyers
would not be able to effectively represent ALH Group. Notwithstanding that AHL Group is a
large employer its business model means that it does not have specialist skills on hand within
the organisation to conduct its case. Further it submits that a right to effective representation
is a central requirement to ensuring all parties receive a fair and just hearing for the purposes
of section 577 of the Act.
Section 596(2)(c)
[13] ALH Group refers to the decision of Flick J in Warrell v Walton4 and distinguishes the
circumstances of that case from the circumstances in this matter. In that case, his Honour
observed that:
“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”.
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:
2291. 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.
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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.
2292. 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.”
[14] In Warrell, the Respondent was granted permission to be represented by a lawyer in
circumstances where the Applicant was unrepresented and had a significant impairment due
to brain damage. It was held in that case that no consideration was given to s.596(2) of the
Act, or the manner in which the discretion was to be exercised even if s.592(a), (b) or (c) was
satisfied.
[15] ALH Group states that the facts in the present case are markedly different and that it
asks the Commission to satisfy itself that one or more of the conditions in s.596(2) exists, and
then whether or not the discretion should be exercised. Further, it submits that to the extent
that the Explanatory Memorandum can be relied on to interpret s. 596 of the Act, it does not
identify the types of cases that are or are not caught by the overarching claim that in most
cases legal representation will not be necessary.
[16] ALH Group submits that it is important to make clear that whilst a decision to grant
permission for a party to be represented by a lawyer may fundamentally change the dynamics
and manner in which a hearing is conducted, it also may have little, if any, impact at all. In
Fitzgerald v Woolworths Limited5 a Full Bench of the Commission repeated the view
established in Warrell, that the legislative intent underpinning s.596 of the Act was supportive
of an approach founded on informal procedure and void of unnecessary formality. Yet such an
approach and the dictates of s.577 of the Act need not be at odds with the desire of a
Respondent to be legally represented in proceedings. ALH Group submits that a legal
representative is equally capable (and sometimes more so) of adopting and submitting to
informal procedures and dispensing with unnecessary formality, so as to assist in ensuring
that the objectives of this Commission in achieving fairness and efficiency when dealing with
complex matters, will be met.
[17] ALH Group submits that discretion should be exercised to grant it permission to be
legally represented and that the main issue is whether or not it would be unreasonable or
manifestly unjust, in such a case where one of the limbs of s. 596(2) was satisfied, if the
discretion was not exercised, particularly given the complexity of the matter, the ramifications
to the ALH Group’s business and the likelihood that none of the requirements of Section 577
of the Act would be disturbed.
[18] ALH Group notes that while Ms Smith is representing herself in this matter, it is clear
that she has received assistance in the advancement of her case. ALH Group also refers to the
decision of Hunt C in Nirmal Singh v Aerocare Fligth Support Pty Ltd6where it was stated
that when granting a lawyer the right to appear, “all necessary and appropriate assistance
will be afforded by the Commission to (the Applicant) at the hearing to ensure procedural
fairness, and that there is no disadvantage by any lack of understanding of issues or hearing
processes.”. ALH Group asserts there appears no reasons why similar assistance could not be
afforded to Ms Smith.
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Ms Smith’s submissions
Section 596(2)(a)
[19] Ms Smith submits that the matter involves little complexity beyond that created by
ALH Group’s legal representative. Ms Smith notes that the ALH Group has acknowledged
that that her working hours were reduced and submits that, as her casual employment was on
a regular and systematic basis, she can claim constructive dismissal for reduction in hours.
[20] Ms Smith submits that Mr Pyers is able to effectively and efficiently represent ALH
Group given the limited complexity involved in the matter.
Section 569(2)(b)
[21] Ms Smith submits that no matter how lean ALH Group’s human resources model is
the Company has a dedicated human resources team who have greater resources than Ms
Smith as a self-represented applicant. Ms Smith submits that Mr Pyers holds a post graduate
qualification in human resources and has been in his position within ALH Group for about six
years. Ms Smith also tendered Mr Pyers’ LinkedIn profile which states that in a previous role
Mr Pyers was involved in: “Supporting and advising managers with performance
management including disciplinary actions, appraisals, salary reviews, and workforce
planning up to and including fair work hearings…”. According to Ms Smith, Mr Pyers’ own
stated skills indicate that he can effectively and efficiently represent the Company at a hearing
in the Commission.
Section 596(2)(c)
[22] Ms Smith referred the Commission to the decision of Cambridge C in Azzopardi v
Serco Sodexo Defence Services Pty Limited7, where the Commissioner noted that if the
Respondent was given permission to have legal representation this would create potential for
the absence of a fair and just hearing as identified in Warrell v Walton. A similar decision
was made in Gupta v Murrin Murrin Operations Pty Ltd8, where the Commissioner also
found that a significant imbalance would be created if permission was granted to the
Respondent.
[23] Ms Smith also submitted that s.577 of the Act contains a notion of procedural fairness
and states that the Commission must perform its functions in a manner that is quick, informal
and avoids unnecessary technicalities. According to Ms Smith, allowing ALH Group to be
legally represented would counter the principles of this provision.
[24] Ms Smith also relies on the decisions in Kennedy v Qantas Ground Services Pty Ltd9
and Rodl v Qantas Airways Pty Ltd10 where in both cases the Commission placed weight on
the Explanatory Memorandum to the Act as to the approach where legal representation is
sought. Ms Smith submits that in both cases the Commission found the Respondent was a
large organisation, with a dedicated HR department and it was decided in both cases that the
matter would not have been more efficient, and the allowance of a legal representative would
sway the balance of fairness between the parties.
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CONSIDERATION
[25] Section 596(1) of the Act relevantly provides that a person may be represented in a
matter before the Commission by a lawyer or paid agent only with the permission of the
Commission. This reflects the general position that a party before the Commission must
normally appear on his or her own behalf. Section 596(2) of the Act provides that the
Commission may grant permission for a person to be represented by a lawyer or paid agent in
a matter only if the Commission is satisfied in relation to one or other of the matters in s.
596(2)(a) – (c). These matters are a constraint upon the discretionary power to grant
permission. Each of the matters must be considered and weighed to determine whether one or
other of them is satisfied to determine whether the exercise of the discretion to grant
permission is triggered. It is then necessary to determine whether in all of the circumstances,
the discretion should be exercised. I turn now to consider those matters in the context of the
present case.
[26] The first is whether the grant of permission would enable the matter to be dealt with
more efficiently, taking into account its complexity. I do not accept the Applicant’s
submission that this is a matter that involves little complexity or that the complexity has been
created by the Respondent’s legal representative.
[27] The background and the matters in dispute can be briefly stated. In an application filed
on 18 December 2018, Ms Smith alleged that she had been constructively dismissed and that
her dismissal took effect on 26 November 2018. The Respondent asserted that Ms Smith had
not been dismissed. The Respondent sought that the jurisdictional objection be dealt with
prior to participating in conciliation. The matter was listed for hearing on 11 March 2019.
Prior to the hearing I listed the matter for mention/conciliation/directions on 5 March 2019.
On 4 March 2019 Ms Smith filed a further application claiming that her employment had
been terminated on 11 February 2019.
[28] At the conference on 5 March 2019 Ms Smith was granted an adjournment to decide
whether she wished to amend her unfair dismissal application in terms of the second
application or whether she wished to press her original application. The hearing date of 11
March 2019 was vacated in the circumstances. A further conference was held on 8 March
2019 at which Ms Smith sought and was granted permission to amend her unfair dismissal
application in the terms of the second application filed on 4 March 2019. In light of this
amendment further Directions were issued for the filing and service of witness statements and
outlines of submissions.
[29] In her amended application, Ms Smith asserts that she is a casual employee who
performed work on a regular and systematic basis for an extended period and that her work
was performed predominantly in one area. Ms Smith further asserts that she was issued a
warning on 26 November 2018 that was both procedurally and substantively incorrect and
that her hours were reduced thereafter to the point she was forced to tender her resignation.
That forced resignation is said by Ms Smith to amount to constructive dismissal.
[30] The Respondent contends that the Applicant was not dismissed and that any reduction
in her hours as a result of the disciplinary action taken by the Respondent was not repudiation
of the Applicant’s contract of employment or a demotion. The Respondent has also indicated
that it will press arguments about the relevance of repudiation in the context of casual
employment.
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[31] The Applicant has sought disclosure of a range of material including CCTV footage
and telephone records from a number of persons. The Applicant has also sought to tender
additional statements from a number of witnesses. Further, the Applicant has foreshadowed
that she may seek to have attendance notices issued to other employees of the Respondent. It
is clear that the Applicant seeks to have the Commission make various findings including that
the warning she received in November 2018 is invalid. It is also arguable that the Applicant
seeks other relief from her unfair dismissal application that is arguably not within the power
of the Commission to grant.
[32] I am satisfied that the matter is complex. While the hearing will deal with the merits of
the application as well as the jurisdictional objection, the jurisdictional objection is complex.
The jurisdictional objection is more than a simple factual dispute and will require familiarity
with relevant case law in both the Commission and the Courts. In this regard, the
jurisdictional objection in the present case is not of the kind where the facts are determinative
and the outcome is unarguable if those facts are established.
[33] Even if there is no factual dispute that the Applicant’s hours were reduced, the issue
for determination involves the effect of the reduction in the hours on the Applicant’s
employment contract, rather than the reduction in hours per se. The determination of the
jurisdictional objection will involve analysis of the law in relation to casual employment and
whether a casual employee can be constructively dismissed by virtue of a reduction in hours
of work. For these reasons, I am satisfied that it would enable the matter to be dealt with more
efficiently, taking into account its complexity, if the Respondent was given permission to be
legally represented.
[34] In relation to whether it would be unfair not to allow the Respondent (as the party
seeking permission) to be represented because it is unable to represent itself effectively, I
have had regard to the fact that the Respondent is a large and well-resourced company. The
Respondent has a dedicated human resource management professional. Mr Pyers, the
Respondent’s Human Resources Business Partner, has (according to his LinkedIn profile
tendered by Ms Smith) a Master’s Degree in Human Resource Management and significant
experience in that field. Mr Pyers has also had experience “up to and including Fair Work
hearings.”
[35] Notwithstanding this I do not accept that Mr Pyers can effectively represent the
Respondent in the present proceedings. While Mr Pyers may have previously had some
involvement in Commission hearings and may be able to effectively represent the Respondent
in an unfair dismissal application, he does not have legal experience or experience that would
enable him to represent the Respondent effectively in advancing a legal argument in relation
to a complex jurisdictional objection.
[36] I have also had regard to the fact that the jurisdictional objection to be taken by the
Respondent is one of some significance to its operations given the number of casual
employees it employs and the nature of the Applicant’s claims. I am satisfied that it would be
unfair not to allow the Respondent to be legally represented in a complex jurisdictional
argument that has potentially broader implications beyond the dismissal of the Applicant.
[37] In relation to fairness between the Respondent and the Applicant I accept that there is
some unfairness to the Applicant if the Respondent is given permission to be legally
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represented given that the Applicant is not represented. I also accept that the Applicant has
not had assistance from a lawyer to prepare her case but has relied on assistance from friends
and family members in this regard. However, this unfairness is balanced by the fact that the
fact that the Respondent’s representative is a legal practitioner with a duty to assist the
Commission. Further, it is the role of the Commission to ensure a fair hearing and to ensure
that the Applicant is not disadvantaged by a lack of understanding about the process of the
hearing.
[38] In all of the circumstances, I have concluded that unfairness to the Applicant does not
outweigh the consideration of efficiency in dealing with the matter in light of its complexity
or fairness to the Respondent as the party seeking to be represented. Accordingly I am
satisfied that the discretion to grant permission for the Respondent to be legally represented is
triggered on the bases of s.596(2)(a) and to a lesser extent s.596(2)(b).
[39] I am also satisfied that the discretion should be exercised and the Respondent should
be given permission to be represented by a lawyer in the matter. In deciding to exercise the
discretion in s. 596 of the Act I have also had regard to the fact that the jurisdictional
objection is to be heard and determined with the merits of the application. This is most
efficient way to deal with the Applicant’s unfair dismissal application on the basis that the
question of whether the Applicant’s employment ended at the initiative of the Respondent
because of conduct or a course of conduct engaged in by the Respondent cannot be neatly
separated from the merits of the application. Further, to separate the determination of the
jurisdictional objection and the merits would be prejudicial to both parties on the basis that if
the jurisdictional objection does not succeed, they would be required to participate in a further
hearing on merits involving further time and inconvenience.
[40] Accordingly, permission for the Respondent to be legally represented is granted. The
matter will now be listed for hearing and further Directions will be issued in relation to the
date and time of that hearing.
DEPUTY PRESIDENT
Printed by authority of the Commonwealth Government Printer
PR708890
1 [2018] FCAFC 131 (16 August 2018).
WORK COMMISSION THE SEAL OF THE
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2 [2018] FWCFB 5.
3 [2012] FWA 2966
4 [2013] FCA 291
5 [2017] FWCFB 2797
6 [2016] FWC 3128
7 [2013] FWC 3405
8 [2016] FWC 2300
9 [2018] FWC 1818
10 [2018] FWC 1935
