[2014] FWC 2860 |
FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s 394 - Application for unfair dismissal remedy
Applicant
v
Respondent
(U2011/12007)
DEPUTY PRESIDENT SAMS |
SYDNEY, 1 MAY 2014 |
Application for unfair dismissal remedy - application filed September 2011 - matter listed for arbitration after numerous adjournments - employer’s request for permission to be represented by a lawyer - complexity of matter - fairness between parties - permission granted - further procedural matters to be considered at commencement of hearing.
[1] This decision will determine an application, pursuant to s 596 of the Fair Work Act 2009 (the ‘Act’), by the respondent in an unfair dismissal proceeding for permission to be represented by a lawyer. That proceeding is listed before me for five days commencing on 5 May 2014. The applicant has requested, and I have agreed, that the names of herself and the respondent be suppressed. In addition, I order that access to the file is restricted to the direct parties and their representatives.
[2] After the applicant became aware that the respondent intended to be represented by a lawyer, she raised objections and made other procedural requests when the matter was listed for mention before Wilson C on 22 October 2013 and 24 January 2014.
[3] In a statement issued on 13 February 2014, Wilson C said:
‘[4] In her contact with my Chambers, [the applicant] made certain conduct of hearing applications with respect to representation by the Respondent, the format of the hearing as a determinative conference, separate room allocations, and confidentiality. These are matters which will be considered by the Presiding Member of the substantive hearing.
[5] Accordingly, the matter will be directed to the Unfair Dismissal Case Management Team, who will consult with the parties about the location and duration of the hearing, and arrange for the matter to be listed in the next suitable unfair dismissal roster.
[6] In view of the fact that to date there have only been submissions and statements filed by the Applicant, it will be necessary for the Respondent to be required to file its materials before the hearing.
[7] I emphasise that the listing for hearing process will take its usual course and further requests for adjournment are most unlikely to be entertained. That is, the parties can expect the matter is listed for hearing in April or May 2013 and not later (unless, for some reason associated with the Commission’s timetabling, it is not possible to list it in that period).
[8] The Presiding Member, once assigned the file, will have drawn to their attention the procedural requests made by [the applicant] and will resolve those requests in accordance with their usual practices.’
[4] After the matter was allocated to me for hearing, I directed the parties to file and serve submissions in respect to the application by the respondent for permission to be represented by Mr Michael Easton of Counsel in the substantive proceedings.
Statutory provisions and relevant principles
[5] Section 596 of the Act is the statutory provision setting out the circumstances in which a party to any proceeding in the Commission may request to be represented by a lawyer or paid agent. It is expressed 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 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.
(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
For the respondent
[6] The respondent observed that it had been represented in this matter since January 2012 by Meridian Lawyers. When the matter first commenced in September 2011, the applicant was represented by White Barnes Solicitors and at various points in the history of this matter, the applicant has been represented by White Barnes and three other law firms.
[7] In elaborating on the matters referred to in s 596(2) of the Act, the respondent submitted that there is a significant potential for this matter to be dealt with less efficiently without a disciplined advocate because:
a. The matter has had a long and difficult history;
b. The applicant’s filed evidence is voluminous and largely irrelevant to the matters at hand. It contains minutiae of events from 2006 until May 2010 when she took sick leave;
c. On the respondent’s case, these events are of only small relevance to the matters in dispute as they did not cause the dismissal of the applicant at all and did not feature in the respondent’s consideration; and
d. The five years of history recounted in the filed evidence is not referred to in any material way with in the applicant’s submission filed in January 2012. It can be noted that these submissions address six ‘reasons/considerations’ prompted by the respondent’s letter of 12 September 2011.
[8] The respondent referred to the Full Bench decision in Priestley v Department of Parliamentary Services [2011] FWAFB 5585 (‘Priestley’), in which it was said that representation by an experienced person will be of ‘undoubted assistance’. It was also said that because the issue in this case concerns the applicant’s fitness to work, there is evidence of conflicting medical reports which will need to be considered by the Commission. Navigating through the medical evidence is unlikely to result in significant cross-examination on matters of credit. The respondent noted that the applicant had represented herself at various times and cannot now reasonably submit that ss 596(2)(b) and (c) apply.
[9] The respondent relied on an affidavit of Anthony Russell Baldwin, Solicitor, which highlighted the history of this matter, the various requests by the applicant, adjournments on medical grounds, a ‘settlement’ of the matter which the applicant refused to accept and various procedural listings before members of the Commission. The history of the matter up to 8 October 2013 was set out by Gooley DP in her role as the Termination of Employment Panel Head as follows:
‘— 23 September 2011 - Application for Unfair Dismissal Remedy lodged by [the applicant].
For the applicant
[10] The applicant set out her submissions opposing permission for the respondent to being represented by a lawyer as follows:
‘1. I am unable to afford legal representation for the hearing/conference, while [the respondent] can.
2. I don’t have any legal background and don’t know how to prepare for a hearing, yet the respondent’s barrister will be very skilled at doing this.
3. The respondent’s legal representatives will be very skilled at cross-examining, yet I have no skills in cross-examining.
4. Due to my health condition, I am worried about being able to think quickly and clearly when being cross-examined. If I become overwhelmed, I will start crying and at that point it becomes difficult for me to be able to comprehend clearly what is being said or to read anything. I have had experience in this happening while dealing with this issue over the last few years and believe this would prejudice the fairness of the hearing.
5. The respondent can afford to pay for witnesses to attend the hearing. I can’t.
6. Any witnesses they have will be well prepared by their legal representative.
7. The respondent has had a long time to read my submissions and prepare their case, yet I have not long ago received their submissions. Their submissions are quite extensive and I am concerned about my ability to be able to read and digest this information in a short time frame, due to health issues, and then be able to prepare for the hearing.
8. Even if the respondent is told that they can’t have legal representation, it is highly likely that the Human Resources Manager at [the respondent], who has been involved in this matter from the beginning, will be very well prepared by their legal team before she attends.
9. Due to health issues, I am going to be struggling at the hearing/conference and to have to deal with this in front of a public gallery will be overwhelming and is highly likely to exacerbate my health condition as I outlined in Point 4.’
[11] The applicant also relied on a letter from her treating psychiatrist, which read as follows:
‘Dear Commissioner Wilson
I am writing to you as [the applicant’s] treating psychiatrist. It is my understanding that after a very protracted period, [the applicant] has decided to represent herself at the Fair Work Commission. The main reason for this is that she can no longer afford to have legal representation. This decision is made knowing that she is in a highly emotional state and knowing that she will find this process very difficult.
[The applicant’s] dismissal from work has had an unmeasurable impact on her psychological health and has essentially paralysed her for life. Following her Workcover hearing, she has remained in a highly anxious state and this has made it extremely difficult for her to focus on anything related to her work without becoming extremely upset. This will make it difficult for her to be fully prepared and be adequately briefed on all the documents pertaining to her case.
I wanted to make the commission aware of the fragile nature that [the applicant] finds herself in and while I believe it is important that the matter is finalised and that [the applicant] has her day in court, I urge you to try and make the proceedings as brief and as unintimidating as possible.’
CONSIDERATION
[12] A few observations may be made about the provisions of s 596 of the Act, in the context of the present application by the respondent for permission to be represented by a lawyer. The Act presumes, as s 596 reinforces, that in the ordinary course, parties to proceedings in the Commission will not be represented by lawyers or paid agents. There is, of course, no bar to employers or employees being represented by Unions or employer organisations, including where such persons representing Unions or employer organisations (or individual employers) are employees of those bodies and are legally trained. So much so is clear from sub-section (4) of s 596 above.
[13] However, given the recent extraordinary shift in the Commission’s emphasis from collective disputes and applications by industrial organisations to individual grievances and disputes, the ordinary course I referred to above is not the practical reality. While am not aware of any recently collected statistics as to the extent of parties being represented by lawyers or paid agents in Commission proceedings, it would be more the norm than the exception, that one or both parties to all proceedings in the Commission are legally represented (much less so by paid agents).
[14] The exercise of the Commission’s power to grant permission to appear is a twofold process. Firstly, permission may only be granted ‘only if’’ one or more of the requirements in s 596(2) is met. Secondly, even if the Commission is satisfied that one or more of the requirements has been met, the Commission is not automatically mandated to grant permission. A discretion still reposes with the Commission by reference to the words ‘FWC may grant permission’ which appear in the opening sequence to s 596(2).
[15] The interpretation of s 596 was the subject of detailed consideration in Warrell v Walton [2013] FCA 291 (‘Warrell’), where, in the Federal Court of Australia, Flick J said at para [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”.
[16] His Honour’s analysis and interpretation of s 596 was recently expressly accepted ‘as correct’ by the Full Bench of this Commission in New South Wales Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663 at para [22].
[17] In passing, I note that Flick J also said in Warrell:
‘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.’
[18] For my part, and with respect, this observation has not been my experience. Invariably, I have found the skills and expertise of an experienced industrial legal practitioner will be more of a help than a hindrance, particularly bearing in mind a legal practitioner’s professional obligations to the Commission and the Courts. In this respect, I refer to the comments of Mason CJ in Giannarelli v Wraith (1988) 165 CLR 543; [1988] HCA 52:
‘[A] barrister’s duty to the court epitomizes the fact that the course of litigation depends on the exercise by counsel of an independent discretion or judgment in the conduct and management of a case in which he has an eye, not only to his client’s success, but also to the speedy and efficient administration of justice. In selecting and limiting the number of witnesses to be called, in deciding what questions will be asked in cross-examination, what topics will be covered in address and what points of law will be raised, counsel exercises an independent judgment so that the time of the court is not taken up unnecessarily, notwithstanding that the client may wish to chase every rabbit down its burrow. The administration of justice in our adversarial system depends in very large measure on the faithful exercise by barristers of this independent judgment in the conduct and management of the case.’
[19] More recently, a Full Bench of the Commission in E. Allen and Ors v Fluor Construction Services Pty Ltd [2014] FWCFB 174 said at para [48]:
‘A lawyer’s duty to the Commission is paramount and supercedes a lawyer’s duties to their client. A grant of permission to appear pursuant to s.596(1) of the Act is based upon a presumption that the representative to whom leave is granted will conduct themselves with probity, candour and honesty. The duty of advocates in that regard has been long recognised by the Commission [footnotes omitted].’
[20] Informality is one thing, but there is still a statutory foundation which must be observed in the exercise of all the Commission’s powers and functions. In my experience, the prospects of a case being run more efficiently and focused on the relevant issues to be determined, is more likely where competent legal representation is involved. I agree with what was said by the Full Bench in Priestley:
‘[13] In our view DPS has established that representation would assist DPS to bring the best case possible. Representation by persons experienced in the relevant jurisdiction will be of undoubted assistance in this regard. We are satisfied that the particular counsel has the capacity to assist the DPS and assist the Tribunal in performing its functions.’
[21] In my view, balancing fairness between parties is as much a case of courtroom management, as it is a case of legislative mandate. With the greatly increased exposure of all courts and tribunals to self-represented litigants, with all of the well known difficulties this brings, the appearance of a focused, experienced and sympathetic legal practitioner is, more often than not, a welcome relief.
[22] On one interpretation, the Commission is positively required to undertake consideration and make appropriate findings in accordance with s 596(2) of the Act, even in circumstances where both parties are legally represented and neither party objects to the legal representation of the other party. To my mind, this is an unnecessary waste of the Commission’s time and resources.
[23] I turn now to consider whether any of the discrete provisions of s 596(2) are satisfied in this case.
[24] It will be readily apparent that this matter has had a long and complex history, including at one point a proposed settlement of the claim. The applicant was terminated on 12 September 2011 on a number of grounds: a diagnosis of her medical condition by a psychiatrist; her failure to provide any contrary medical evidence in support of her claim that she was fit to return to work; her lack of cooperation in obtaining medical reports and her refusal to consider medical treatment or care for the medical condition she was diagnosed with.
[25] That the matter is complex is perhaps no better illustrated than by the applicant herself. Prior to her dismissal, she claimed to have been seeking legal advice and would not cooperate in providing relevant additional information because she decided to take legal advice instead. Moreover, her application for an unfair dismissal remedy was prepared by Mr Michael Barnes of White Barnes and contained a series of allegations of bullying and harassment, a failure to comply with the respondent’s policies, conflicting medical opinions and criticisms of these opinions and allegations of procedural unfairness. In all, the applicant has been represented by four different firms of solicitors up to February 2014.
[26] In my view, it not to the point that the applicant can no longer afford legal representation, or that she has no legal training. Nor are these matters which arise under s 596(2) of the Act. In addition, the applicant said she cannot afford to pay for witnesses to attend the hearing, whereas the respondent can and they will be well-prepared. Again, this is not a matter going to the tests under s 596(2) or to issues of fairness generally. The Commission cannot direct a party how to run its case or to limit the number of witnesses it proposes to call (subject, of course, to relevance). In any event, I note that the respondent only proposes to call two witnesses, who, on any view, are directly relevant to the circumstances surrounding the applicant’s dismissal. Whether they are well-prepared or not is irrelevant to any consideration under s 596(2) of the Act.
[27] I am well satisfied that this matter is of sufficient complexity that it will be dealt with more efficiently if the respondent is permitted to be legally represented. I note that the respondent’s Counsel is an experienced industrial practitioner, who will be of undoubted assistance to the Commission. I believe the applicant will also be assisted by having an experienced person on the other side who can focus on the relevant issues which she needs to bring to the Commission’s attention.
[28] The applicant is worried that her health condition will overwhelm her and she will have difficulty in comprehending what is being said or what she is required to read. While I am sympathetic to the applicant’s concerns and I acknowledge her undoubted medical problems, it seems to me that she will face these circumstances irrespective of whether the respondent is represented by Counsel or its Human Resources Manager. I would wish to assure the applicant that she will be granted all such consideration and latitude as her condition at the time will demand and the Commission will grant her any such reasonable time as to allow her to properly conduct her case.
[29] As her treating psychiatrist observed, the applicant’s best interests will be served by having these proceedings concluded after the passage of such a long period of time. I am sure the applicant’s medical problems are not assisted by the worry of an unfinished case that must come to an end at some point. An overarching consideration in the Commission’s unfair dismissal jurisdiction is to provide all parties with a ‘fair go all round’ (s 181(2)). In my view, that imperative will be best served if the hearing is concluded and the matter brought to finality by decision, sooner rather than later.
[30] As to other issues regarding the conduct of the proceedings, I propose to deal with these matters, in the ordinary course, at the commencement of proceedings on 5 May 2014. I remind the applicant that even if a determinative conference is agreed to, witnesses are still required to give evidence and be subject to cross-examination. It still requires a formal published decision of the Commission. It is not merely a private conference as is generally understood by that term.
[31] These proceedings are adjourned until 10:00am, 5 May 2014.
DEPUTY PRESIDENT
Printed by authority of the Commonwealth Government Printer
Written submissions
Applicant - 16 April 2014
Respondent - 23 April 2014
<Price code C, PR550155>