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Fair Work Act 2009
Section 394 - Application for unfair dismissal remedy
Mr D. A.
v
Baptist Care SA
(U2019/9236)
DEPUTY PRESIDENT ANDERSON ADELAIDE, 6 MARCH 2020
Application for an unfair dismissal remedy – permission to be represented – section 596 FW
Act – efficiency – complexity – fairness – permission granted
[1] D.A. (the Applicant) has filed an unfair dismissal application in the Commission under
section 394 of the Fair Work Act 2009 (FW Act) seeking a remedy for an alleged unfair
dismissal from his employment with Baptist Care (SA) Incorporated (Baptist Care or the
Respondent).
[2] Pre-hearing procedures to date have led to the following:
1. A direction anonymising the identity of the Applicant;1
2. A Decision and Order that a third party, PsychCheck, produce documents to the
Applicant through the agency of his nominated psychologist;2
3. A Confidentiality Order relating to documents, evidence, submissions, audio recording
and transcript concerning the application;3 and
4. Directions relating to the hearing and determination of the matter.4
[3] Baptist Care oppose the application and have raised a jurisdictional issue, being that
the Applicant was not dismissed.
[4] The matter is set down for hearing and determination of the jurisdictional issue, merits
and remedy on 10 and 11 March 2020.
[5] This decision concerns legal representation at the hearing and determination of the
matter.
[6] Background facts to the application by D.A. are set out in my Production Decision of
15 November 2019.5
1 Directions at [1] 24 October 2019
2 Decision [2019] FWC 7358 15 November 2019 and Order PR712911
3 Order PR714286 15 November 2019
4 Directions 18 December 2019
5 [2019] FWC 7358 at [8] to [21]
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DECISION
E AUSTRALIA FairWork Commission
[2020] FWC 1249
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[7] Further facts relevant to the representation issue are set out below.
[8] D.A.’s application dated 19 August 2019 was filed under his own hand.
[9] On 10 September 2019 a lawyer acting for Baptist Care formally came onto the
Commission file.6
[10] On 30 September 2019 a lawyer acting for D.A. formally came onto the Commission
file.7
[11] At a directions hearing on 2 October 2019 I granted permission, by consent, for the
Applicant and Respondent to be represented by a lawyer in interlocutory proceedings on the
application, with the issue of representation at the hearing and determination to be determined
at a later date.
[12] My directions of 18 December 2019 required both the Applicant and the Respondent
to file materials concerning representation by 7 February 2020 (in support) and 14 February
2020 (in opposition).
[13] Submissions seeking permission were filed by Baptist Care (7 January) and D.A. (13
February). No submissions in opposition were, at that time, filed.
[14] In advance of deciding the representation issue, D.A. advised the Commission on 4
March 2020 that his circumstances had changed, that he would no longer be represented by a
lawyer due to financial reasons, that he would be self-represented at the hearing assisted
possibly by a support person, and that he now opposed permission being granted to Baptist
Care.
[15] On 4 March 2020 lawyers for D.A. filed in the Commission a Notice of Ceasing to
Act.8
[16] I convened a directions hearing on 5 March 2020 at which time D.A. made an oral
statement opposing permission. Baptist Care made an oral submission in support of granting
permission. I granted D.A. leave to file a late written statement in opposition by 12 noon on 6
March 2020, which he has done in a timely manner.
[17] I determine this question having regard to the oral and written submission made.
Legal Principles
[18] Section 596 of the FW Act provides as follows:
“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
6 F53
7 F53
8 F54
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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.”
Submissions
[19] Baptist Care submit that these proceedings involve complexity arising from the
jurisdictional issue as well as other matters arising including contractual obligations held by
the Respondent to two third parties being the Minister for Child Protection and a contracted
organisation PsychCheck, and legal obligations under the Children and Young People (Safety)
Act 2017 (SA).
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[20] Further, Baptist Care foreshadowed a challenge to any fresh expert evidence that seeks
to look behind a report prepared by PsychCheck upon which it says it relied.
[21] The jurisdictional issue appears to concern whether D.A. was dismissed in light of the
Respondent’s claim that D.A. was employed in two roles and continues to perform one of
those roles.
[22] Baptist Care submit that proceedings will be more efficiently conducted on each of
these issues, as well as the taking of evidence or expert evidence, if they are represented by a
lawyer.
[23] Baptist Care also submit that it would be unfair to refuse permission as it claims that
its human resource officers have no specialist expertise in contested tribunal advocacy or
these legal issues.
[24] D.A. submits that it would be unfair for Baptist Care to be legally represented in
circumstances where he is now self-represented. He says this will create an imbalance in the
proceedings that may prejudice his case.
[25] D.A. also submits that Baptist Care is a sizeable employer with a dedicated human
resource division which could represent the Respondent especially given the legal assistance
it has received thus far.
[26] He acknowledges that the case involves some complexity but that issues of fact and
procedural fairness are not complex. Whilst opposing permission at large, in the alternative he
says that one option available to the Commission would be to limit the Respondent’s
permission to the complex matters only.9
Consideration
[27] Baptist Care can only be represented by a lawyer with permission of the
Commission.10
[28] The granting of permission under section 596 involves a two-step process. The first is
that at least one of the criteria in section 596(2) needs to be satisfied. The consideration
required by this first step “involves the making of an evaluative judgment akin to the exercise
of discretion.”11 The second is that the discretion, if exercised, must be exercised in favour of
the applicant for permission12 in the sense that the discretion concerns whether to grant
permission, not whether to deny or withdraw an established right.
[29] I agree with D.A. that the starting point for the exercise of the discretion is that
granting permission should be seen as a departure from the default position that a party in
proceedings before the Commission must normally appear on its own behalf.13 This
proposition is consistent with the statutory scheme:
9 Written Submission 6 March 2020 paragraph 6
10 Section 596(4) does not apply in this matter
11 Asciano Services Pty Ltd v Hadfield [2015] FWCFB 2618 at [19]
12 Calleri v Swinburne University of Technology [2017] FWCFB 4187 at [36]
13 Warrell v Fair Work Australia [2013] FCA 291 at [24]
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“FWA is intended to operate efficiently and informally and, where appropriate, in a
non-adversarial manner. Persons dealing with FWA would generally represent
themselves.”14
[30] I now turn to consider the factors set out in section 596(2) of the FW Act: efficiency
(in the context of the complexity of the matter); fairness (in the context of the capacity of the
person seeking permission to effectively represent themselves); and fairness between the
parties.
Efficiency and Complexity
[31] This matter entails the determination of at least one jurisdictional objection and, in the
context of merits and remedy, a number of additional matters. Those matters, including
contractual obligations held by Baptist Care to the Minister for Child Protection and to
PsychCheck, and related legal obligations under the Children and Young People (Safety) Act
2017 (SA), lead me to conclude that this is a complex matter.
[32] I have yet to determine whether leave should be granted to D.A. to file a late statement
from his treating psychologist. Determining that question also involves a degree of
complexity, given the submission foreshadowed by Baptist Care that proceedings by way of
judicial review are the more appropriate course to test opinions expressed by PsychCheck or
other experts. In any event, should leave be granted, I am satisfied that cross examination of
D.A.’s treating psychologist would be more efficiently conducted by a lawyer.
[33] Having regard to those complexities, these proceedings will be more efficiently
conducted if a party is represented.
[34] Section 596(2)(a) is made out and supports the granting of permission.
Unfairness
[35] Sub-sections 596(2)(b) and (c) require fairness to be considered in two contexts:
fairness in the context of the capacity of the person seeking permission to effectively
represent themselves; and fairness between the parties.
[36] The Respondents say denying them representation would be unfair as it would leave
its case to be presented by officers of its human resources department.
[37] Whilst I take into account D.A.’s submission that Baptist Care’s human resources
department has experience and resource, there is a material difference between human
resource management and contested industrial arbitration involving factual and legal matters.
[38] I am satisfied that whilst Baptist Care’s human resource officers would be able to
present a case, the Respondent would be unlikely to represent themselves effectively in the
context of the complex issues arising in this matter. It would be unfair to require them to do
so in circumstances where they seek representation.
14 Explanatory Memorandum to the Fair Work Bill 2008 at paragraph 2291
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[39] The considerations in section 596(b) weigh somewhat in favour of a grant of
permission.
[40] Section 596(c) concerns unfairness between persons in the matter.
[41] There would be a clear imbalance in representation should permission be granted
given the late withdrawal, for understandable reasons, of D.A.’s legal representative. D.A. is
not a person with a legal or advocacy background, and even with the help of a support person,
is likely to be at a material disadvantage if Baptist Care is legally represented. The
significance of that imbalance is heightened in a matter such as this where complex factual
and legal issues arise.
[42] Section 596(2)(c) is not made out. The potential unfairness to D.A. is a reason for not
granting permission.
Conclusion
[43] In exercising the statutory discretion each factor in section 596(2) does not have to be
made out although each must be considered.15
[44] I have found that it would be more efficient to grant permission to the Respondents
owing to the complexity of the matters in issue.
[45] I have also found that there would be a level of unfairness if the Respondents were
required to be represented by internal human resource officers.
[46] I have found that material unfairness arises to the Applicant D.A. should permission
be granted.
[47] Taking these matters into consideration, I am satisfied that it is appropriate to exercise
the statutory discretion to grant permission to Baptist Care to be represented by a lawyer. I
reach this conclusion largely on account of the complexities arising in this matter and the
likelihood that legal representation will assist the efficient conduct of proceedings.
[48] I have carefully considered the fall-back suggestion made by D.A. that the
Commission should limit the Respondent’s permission to the complex matters only. Whilst
the suggestion is helpful, I do not consider it practical, for two reasons.
[49] Firstly, the legal matters creating complexity pertain to a central issue of fact and law,
that is whether there was a valid reason for dismissal. Depending on how the parties
ultimately put their case, they may also pertain to issues of procedural fairness or at least the
adequacy of steps taken by the employer when engaging with D.A. prior to or at the time of
the alleged dismissal. There is no clear delineation as to those parts of these proceedings
where the complex issues may start and finish. Baptist Care is entitled to advance its case as it
frames it – as is D.A.
[50] Secondly, turning representation on and off during the hearing (even if the subject
matter delineation were clear) is likely to create an artificial environment restricting the
15 Warrell v Fair Work Australia [2013] FCA 291 at [24]
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Commission’s capacity to efficiently deal with issues as they arise (for example, once D.A.
has secured a late statement from his treating psychologist, the admissibility of that
statement).
[51] It nonetheless remains a matter of importance that any potential prejudice to D.A.
arising from Baptist Care being legally represented is minimised if not avoided altogether.
The Commission will take the following three steps in this respect.
[52] Firstly, the Workplace Advice Service, facilitated by the Commission will, insofar as
is possible, be made available to D.A. should he require assistance, even at this late stage
prior to hearing.
[53] Secondly, permission will be granted on the condition that I will provide D.A. and any
support person accompanying him a reasonable level of assistance and guidance to ensure that
his evidence and submissions are presented and that he is able to test the submissions and
evidence of Baptist Care. I will do so in a manner consistent with my statutory obligations as
an independent statutory office holder.
[54] Thirdly, permission will be granted on the condition that I may subsequently withdraw
that permission (after hearing the parties) if it becomes apparent that representation is not
assisting the efficient or fair conduct of the proceedings.
[55] For these reasons, and on these conditions, permission is granted under section 596 of
the FW Act to Baptist Care to be represented at the hearing and determination of this matter.
[56] D.A’s application remains listed for hearing at 10.00am (ACDT) 10 March 2020.
DEPUTY PRESIDENT
Appearances:
D.A. on his own behalf with M. H.
K. Eaton with D Hunt, with permission, for the Respondent.
Hearing details:
2020.
Adelaide (by phone).
5 March.
Final written submissions:
D.A. – 6 March 2020.
WORK COMMISSION THE SEA
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