1
Fair Work Act 2009
s.394—Unfair dismissal
Toby Artery
v
G Case & H Case T/A Gavin Case Marine Services
(U2021/4457)
DEPUTY PRESIDENT EASTON SYDNEY, 14 JULY 2021
Unfair dismissal application filed out of time – permission to appear by a lawyer – efficiency
– complexity – fairness to a party.
[1] Mr Artery was dismissed from his employment on 30 April 2021. Section 394(1) of
the Fair Work Act 2009 (“the Act”) requires Mr Artery to make his application for an unfair
dismissal remedy within 21 days after his dismissal took effect, being midnight on 21 May
2021.1 Mr Artery did not make his application until 24 May 2021 and therefore requires an
extension of time.
[2] The Respondent has sought the permission of the Commission to appear by a lawyer
pursuant to s.596 of the Act. This decision deals with the Respondent’s application.
[3] A telephone directions hearing took place on 23 June 2021 and Mr Traill of
Employsure Law sought permission to appear for the Respondent. Mr Artery appeared for
himself and elected not to respond to the Respondent’s application for permission at that time.
Directions were made for the filing of evidence and submissions in relation to Mr Artery’s
application for an extension of time as well as the filing of submissions in relation to the
Respondent’s application for permission to appear.
[4] On 12 July 2021, being 3 days after the date set in the Directions, the Respondent filed
a written submission supporting its application for permission. On the same day, Mr Artery
indicated his opposition to legal representation.
The Respondent’s submissions
[5] The Respondent’s written submissions mostly comprise of a generalised summary of
key decisions of the Commission, which is helpful to a degree. The submissions refer to
principles such as:
(a) the appearance of a focused, experienced and sympathetic legal practitioner may be a
welcome relief in dealing with the well-known difficulties experienced by courts and
1 Allowing for the operation of s.36(2) of the Acts Interpretation Act 1901 (Cth).
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DECISION
E AUSTRALIA FairWork Commission
[2021] FWC 4130
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tribunals that are regularly dealing with self-represented litigants, particularly where
mental illness is a factor (citing Applicant v Respondent [2014] FWC 2860 at [21]);
(b) where a party raises a jurisdictional issue, permission for representation will usually
be granted (citing CEPU v UGL Resources Pty Ltd [2012] FWA 2966 at [23] and
Calleri v Swinburne University of Technology [2017] FWCFB 4187 – perhaps
referring to [36]-[37]);
(c) ultimately the issue is whether the grant of permission would enable the matter to be
dealt with more efficiently. There will be circumstances where permission for legal
representation may enable a matter to be dealt with more efficiently even though it is
not particularly complex (citing Singh v Metro Trains Melbourne [2015] FWCFB
3502 at [16]);
(d) in respect of section 596(2)(b), whether it would be unfair not to allow the Respondent
to be represented because the Respondent is unable to represent itself “effectively”,
having a level of expertise short of ‘effective representation’ may warrant permission
(citing Titan Plant Hire Pty Ltd v Malsen [2016] FWCFB 5520 at [35] and referring to
the possibility of a ‘constructive denial of procedural fairness’ arising); and
(e) an assessment of whether a party is able to effectively represent itself is not solely an
assessment of the skills and education of the individual, but rather an examination of
the resources available to a party as a whole (citing King v Patrick Projects Pty Ltd
[2015] FWCFB 2679).
[6] The Respondent’s submission about the actual level of complexity of the current
proceedings is very brief. The Respondent’s single point is that because the extension of time
involves a ‘jurisdictional question’ the matter is likely to be dealt with more efficiently if
permission is granted. The high point, and arguably the whole point, of the Respondent’s
submission in this regard, is contained in the following excerpt:
“…Additionally, we draw the Commission’s attention to the decision in Calleri v
Swinburne University of Technology [2017] FWCFB 4187. That matter involved a
jurisdictional question which was not of itself especially complex, but within the
context of a short jurisdictional hearing it was held that legal representation would
assist the matter to be dealt with more efficiently. We submit that the same finding
could reasonably be made here.”
[7] The matter before the Commission is an application for an order under s.394(3)
allowing Mr Artery a further period for his application to be made. Applications under
s.394(3) are often described as ‘jurisdictional’ insofar as the Commission’s jurisdiction to
hear and determine unfair dismissal claims is only engaged when an application is made
within time or if an extension of time is granted.
[8] In CEPU v UGL Resources (Project Aurora) [2012] FWA 2966 (“UGL”) Senior
Deputy President Richards made the general observation that that where a party seeks to
agitate a jurisdictional issue then it would follow that representation by a lawyer would be a
reasonable course. He reasoned that “jurisdictional issues by their nature are prospectively
complex in their own right, and/or else may require a degree of familiarity with court and
tribunal jurisprudence or authorities."2
2 CEPU v UGL Resources (Project Aurora) [2012] FWA 2966 at [23].
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[9] The “jurisdictional question” considered in Calleri v Swinburne University of
Technology [2017] FWCFB 4187 was whether the applicant had served the minimum
employment period, which in turn required a determination of whether the applicant had been
engaged as a casual employee on a regular and systematic basis prior to his permanent
appointment.3 At first instance Commissioner Wilson described the complexity of the
jurisdictional matter before him in the following way: 4
“The relevant complexity in this particular matter is whether, in all the circumstances,
the service of Mr Calleri may properly be regarded as continuous service for the
purposes of the Act and whether, in any respect, any breaks in employment may be
regarded as having broken the continuity of service. In themselves these matters are
not especially complex, however within the context of a short jurisdictional hearing
ostensibly to be focused upon the facts of the matter it was considered by me that legal
representation by the Respondent would assist the matter to be dealt with more
efficiently.”
On appeal the Full Bench found no error in the Commissioner’s approach.5
[10] In Caruana v Shace Toop Trading Trust T/A Toop & Toop Real Estate [2018] FWC
2231, Deputy President Anderson took a similar approach to the jurisdictional matter before
him. His Honour described the complexity of the jurisdictional matters at [23]-[25]:
“In this matter, the coverage of the Real Estate Award 2010 (the Award) as it applies to
Mr Caruana in his role as General Manager - Sales is directly in issue. Resolving
questions of this nature involve complexity. Whether a modern award applies to an
employee is not necessarily straightforward, particularly where the upper reaches of an
award need to be examined in the context of managerial employees.
Mr Caruana also intends to advance the proposition that the employer is estopped from
claiming that he is not covered by the Award given that (he says) the employer has
previously claimed he is so covered. Legal principles of issue estoppel may arise.
I also note that Mr Caruana’s reply to the jurisdictional objection claims that his
annual earnings did not exceed the statutory high income threshold. This would appear
to be a matter concerning the meaning of the phrase “annual rate of earnings” in
section 382(b)(iii). It may involve some complexity depending on the submission
being advanced, but I consider that it is likely to be less complex than the issue of
determining award coverage.”
[11] DP Anderson cited SDP Richard’s general observation in UGL with approval (at [26]-
[27]) and ultimately found that granting permission for the Respondent to be represented by a
lawyer in the proceedings would enable the jurisdictional matter listed for hearing to be dealt
with more efficiently (at [33]).
3 See Joseph Calleri v Swinburne University of Technology [2017] FWC 2702 at [13].
4 See Joseph Calleri v Swinburne University of Technology [2017] FWC 2702 at [9].
5 Calleri v Swinburne University of Technology [2017] FWCFB 4187 at [33]-[38].
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[12] Recently in Wellparks Holdings Pty Ltd t/as ERGT Australia v Govender6 a Full
Bench rejected the proposition that jurisdictional issues are ‘by their nature’ complex. The
Full Bench said at [51]:
“…Some jurisdictional issues may properly be characterised as complex and others not.
A case by case assessment is required, rather than the adoption of some general
decision rule which assumes that all matters in which a jurisdictional issue arises are
‘complex in their own right’ and that ‘representation by a lawyer would be a
reasonable course’. To the extent that Senior Deputy President Richards is to be
understood as expressing a contrary view, we respectfully disagree.”
[13] The Respondent’s submissions properly concede that “the mere fact that this is a
jurisdictional hearing will not, of itself, ground a finding that the matter could be dealt with
more efficiently by granting representation”.
[14] The Respondent’s submissions do not, however, identify any particular complexity
within the current matter other than the fact that it is a ‘jurisdictional hearing’. In fact, the
Respondent’s submissions reproduced above, basically concede that the present matter is not
a complex one.
[15] From my preliminary review of the filed material, including the materials filed by the
Respondent in preparation for the hearing, the Respondent’s tacit concession is properly
made. The facts relied upon by the parties in relation to the extension of time are not
extensive and perhaps not even in contest. The primary facts focus upon Mr Artery’s
explanation for his delay rather than any conduct of the Respondent. Mr Artery’s application
was filed three days late and he faces a ‘high hurdle’7 to obtain an extension of time. The
principles in this regard are well settled.
[16] The seemingly simple phrase in s.596 “it would enable the matter to be dealt with
more efficiently, taking into account the complexity of the matter” has ironically proved
complex to apply. Earlier decisions of the Commission have found:
even if legal representation would enable a matter to be dealt with more efficiently, a
lack of complexity in the matter may still mean that permission to appear is
declined8; and
even if a matter is invested with some complexity, the Commission must be satisfied
that legal representation would enable the matter to be dealt with more efficiently.9
[17] There is an abundance of decisions that properly recognise, as a general proposition,
that allowing a party to appear by way of a legal representative will enable matters to be dealt
with more efficiently. Similarly, there is an abundance of decisions that properly recognise
that the “normal” or default position under the statute is that parties appear for themselves
unless permission is granted under s.596(2).
6 [2021] FWCFB 268 at [51].
7 Lombardo v Commonwealth of Australia as represented by the Department of Education, Employment and Workplace
Relations [2014] FWCFB 2288 at [21], see also Jason Mooney v Mega Industries Pty Ltd [2021] FWCFB 2489 at [16].
8 King v Patrick Projects Pty Ltd [2015] FWCFB 2679 at [15].
9 National Tertiary Education Industry Union-NSW Division v The University of New England T/A The University of New
England [2018] FWC 1913 at [14].
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[18] The decision of Justice Flick in Warrell v Walton10 is regularly referred to when
considering applications under s.596. The root error made by the Commission at first instance
was not that the Commission necessarily misapplied the criteria in s.596(2), it was that the
Commission did not address the criteria at all.11 His Honour made some observations about
the significance of the original error by reference to the statutory scheme. His Honour
observed that decisions under s.596 are not merely procedural (at [24]), that a failure to
properly apply the criteria in s.596 “runs the very real risk that what was intended by the
legislature to be an informal procedure will be burdened by unnecessary formality” (at [25]),
and that the self represented applicant with brain damage, whose case was decided against
him on matters including credit, suffered real prejudice as a result (at [26]).
[19] In my view there is a danger that the Commission can attach more importance to “the
complexity of the matter” than the statute permits. The only test the Commission must apply
under s.596(2)(a) is whether granting permission “would enable the matter to be dealt with
more efficiently”. In applying this test, the Commission must take into account the
complexity of the matter, but it does not have to find that the matter is actually complex, nor
does it have to find that a matter is more complex than other matters.
[20] As observed by Justice Flick, the significance of granting permission under s.596, or
not granting permission for that matter, is potentially high. Parliament did not mandate that
parties must represent themselves,12 and Parliament separately catered for circumstances
where it might be unfair to deny legal representation to a party (s.596(2)(b)).
[21] In my view, and in this context, the way in which the Commission must take into
account the complexity of the matter is to address whether the complexity (or lack thereof)
supports a finding that that the matter can be dealt with more efficiently or not. It is also
possible that in some instances the complexity of the matter is a neutral consideration for the
primary question.
[22] Mr Artery’s application for an extension of time is not particularly complex. This
reality is a factor that points against a finding that the matter will be dealt with more
efficiently if permission is granted.
[23] I do however find that granting the Respondent permission under s.596 will
nonetheless enable the matter to be dealt with more efficiently. The materials filed on behalf
of the Applicant have been prepared in an ordered fashion, are focused only on the issues at
hand and provide material assistance for the Commission’s task. The risk cited by Justice
Flick in Warrell v Walton that the “informal procedure will be burdened by unnecessary
formality” has not [yet] materialised in these proceedings.
10 Warrell v Walton (2013) 233 IR 335, [2013] FCA 291,
11 Warrell v Walton (2013) 233 IR 335, [2013] FCA 291 at [11], [26]-[27].
12 CEPU v UGL Resources Pty Ltd [2012] FWA 2966 at [7].
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[24] As the Full Bench in Wellparks Holdings Pty Ltd t/as ERGT Australia v Govender
recently noted13:
“The assessment of whether permission should be granted under s 596 involves a two-
step process. The first step is to consider whether one or more of the criteria in s
596(2) is satisfied. The consideration required by this first step ‘involves the making of
an evaluative judgment akin to the exercise of a discretion’. It is only where the first
step is satisfied that the second step arises, which involves a consideration as to
whether in all of the circumstances the discretion should be exercised in favour of the
party seeking permission. The satisfaction of any of the requirements set forth in s
596(2)(a) to (c) does not of itself dictate that the discretion is automatically to be
exercised in favour of granting permission.” [Footnotes omitted]
[25] In exercising my general discretion now available under s.596(2), I am mindful of Mr
Artery’s opposition to the granting of permission and also the general statutory scheme which
emphasises informality and efficiency and requires the Commission to perform its functions
in a manner that is quick, informal, avoids technicalities and is nonetheless open and
transparent (per s.577). I also recognise that in applications under s.394 the applicant carries
the burden of establishing a proper basis for an order under s.394(3) and that the
Respondent’s role in such applications is, in a practical sense, less significant than in other
types of applications.
[26] I formally give permission for the Respondent to appear by a legal practitioner. In
granting this permission I note that if circumstances change during the hearing the Applicant
may apply under s.603 for the permission to be revoked.14
DEPUTY PRESIDENT
Printed by authority of the Commonwealth Government Printer
PR731675
13 Wellparks Holdings Pty Ltd t/as ERGT Australia v Govender [2021] FWCFB 268 at [48].
14 Oratis v Melbourne Business School [2014] FWCFB 3869 at [7].
OF THE F THE SEAL MISSION
