[2017] FWC 4236

FAIR WORK COMMISSION

INTERIM DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Christian Guillemain
v
Woolworths Limited T/A Melbourne Liquor Distribution Centre
(U2017/5477)

COMMISSIONER HARPER-GREENWELL

MELBOURNE, 15 AUGUST 2017

Application for an unfair dismissal remedy - s.596 of the Fair Work Act 2009.

[1] Mr Christian Guillemain was employed as a full-time Team Leader at the Melbourne Liquor Distribution Centre in Laverton (MLDC) until he was summarily dismissed on 12 May 2017. The MLDC is owned by Woolstar Pty Ltd, a subsidiary of Woolworths Limited. It is alleged that Mr Guillemain was dismissed due to engaging in serious safety breaches. Specifically MLDC allege that he:

failed to follow proper procedures and direct staff under his direction to immediately stop what they were doing upon arrival at the incident;

failed to follow standard risk assessment processes and consult with a HSR prior to addressing the hazard;

placed himself and others in a very dangerous situation by getting underneath the tynes of a forklift and allowing other team members to do so; and

failed to follow up on immediate and proper corrective actions.

[2] Mr Guillemain denies the allegation and has made an application pursuant to s.394 of the Fair Work Act 2009 (the FW Act) for an unfair dismissal remedy. Mr Guillemain contends that he acted in an unsafe manner and further, that because MLDC failed to act on the safety breach until nearly a month after the incident, they had essentially condoned his behaviour.

[3] The matter is listed for hearing before the Fair Work Commission (the Commission) in Melbourne on 18 August 2017. Mr Guillemain has sought permission to be represented by a paid agent pursuant to s.596 of the FW Act. MLDC has sought permission to be represented by a lawyer pursuant to s.596 of the FW Act

[4] This matter was listed for a mention/directions hearing by telephone on 7 August 2017. Despite having previously confirmed their attendance, neither representative could be contacted at the commencement of this hearing. My chambers made several unsuccessful attempts to contact the representatives. Mr Tan, Employee Relations Case Specialist for MLDC, requested in the absence of appearance by the representatives that the mention/directions hearing be adjourned.

[5] The representative for MLDC contacted my chambers later that day advising he had dropped his phone in water and was unable to make or receive any calls. My chambers did not receive any correspondence or explanation from Mr Guillemain’s representative regarding his non-attendance until the conciliation conference conducted on 9 August 2017. Mr Guillemain’s representative provided the explanation that his non-attendance was due to an oversight.

[6] Directions were issued on 7 August 2017 requiring any party seeking to be represented by a lawyer or paid agent at the hearing on 18 August 2017 to file submissions addressing s.596 of the FW Act by no later than 9 August 2017. The parties were informed that I intended on dealing with the matter of representation on the papers unless either party requested to be heard. Neither party sought to be heard on the matter of representation.

[7] Both parties filed written submissions in accordance with directions. Neither party objected to the other being represented at the scheduled proceedings.

[8] The question of representation in proceedings before the Commission is governed by section 596 of the FW Act which is in the following terms:

“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

[9] The legislative intentions underpinning section 596 of the FW Act have been the subject of various Decisions of the Commission. The approach to considering the question of representation has been examined in Warrell v Walton 1 in which Flick J found that:

“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”.”

[10] The decision to grant permission is therefore not merely a procedural step but one which requires consideration in accordance s.596 of the FW Act.

[11] Subsection 596(2)(a), (b) and (c) are commonly paraphrased as (a) efficiency /complexity, (b) inability to represent oneself effectively, and (c) fairness. The decision to grant permission for representation is a discretionary one that is only exercisable if the Commission is satisfied that at least one of the conditions in section 596(2) of the FW Act is met.

[12] I now turn to consider each of the matters under section 596(2) of the FW Act.

Efficiency / Complexity- 596(2)(a)

[13] Mr Guillemain’s representative submits that the matter is not unduly complex however representation may assist more efficient conduct of the case.

[14] MLDC’s representative did not agree with the submission that the matter was not complex, submitting that there are a number of difficult issues to address including the application of appropriate case law and the careful forensic testing of the facts, including CCTV footage. They submit that representation “would greatly assist the Commission with efficiency and in assisting the Commission manage the hearing and having it dealt with in the allotted time of 1 day”.

[15] Upon examination of all of the material which has been filed, and without making any findings on the substantive matter, I agree with Mr Guillemain’s representative’s submission being that the matter is not unduly complex. There is a factual conflict however this matter does not contain a level of complexity beyond that which would ordinarily be found in a routine unfair dismissal matter.

Inability to represent oneself effectively –s 596(2)(b)

[16] Mr Guillemain’s representative submits that Mr Guillemain would not be able to represent himself adequately in arguing his case. He submits that Mr Guillemain would struggle to argue his own case, cross-examine the Respondent’s witnesses and argue what ought to be made of the materials the Respondent has filed.

[17] MLDC’s representative submits its in-house Employee Relations Case Specialists are not legally trained, skilled or equipped to perform advocacy in the Commission and could not properly articulate all the issues this case has which need to be addressed. They submit that this would be particularly relevant should Mr Guillemain be represented, in which case it would not be a level playing field.

[18] Mr Guillemain will not be calling any additional witnesses in this matter and MLDC is relying on the witness evidence of one employee. It should be noted that the Commission is obliged to perform its functions and exercise its powers in a manner that is ‘fair and just’ 2 and that the ‘normal position’ of the Act is that a party “in a matter before the Commission” must normally appear on his own behalf.3

[19] MLDC is part of a large company with significant internal resources and, although they are not legally trained and experienced with advocacy, they are experienced in dealing with employee relations matters. Similarly, Mr Guillemain is not legally trained nor is he an experienced advocate; however he is an experienced team leader who was responsible for the management of a significantly large number of employees. Upon examination of the submissions made I cannot conclude that either Mr Guillemain or MLDC would be unable to represent themselves.

Fairness - s596(2)(c)

[20] Mr Guillemain’s representative submits that, should neither party be represented, MLDC would be entitled to be represented by in-house legal staff, in-house trained HR or IR or senior professional managers who could be expected to have superior legal and communication skills to Mr Guillemain.

[21] MLDC submit the issue of fairness arises should only Mr Guillemain be granted permission to be represented.

[22] If permission for representation was granted to MLDC in the absence of granting permission for representation for Mr Guillemain, or vice versa, there would be a significant imbalance between the parties.

[23] The factors regarding fairness between the parties and the requirement for informality was recognised in Warrell in which His Honour stated;

“25. The appearance of lawyers to represent the interest 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.” 4

[24] I have considered the submissions and I am of the view in the present circumstances unnecessary formality would be created by the granting of permission for representation.

[25] I am satisfied that if permission for representation by external representatives is denied, it will not lead to a situation of unfairness for either party

Conclusion

[26] I have considered the materials before me and for the above reasons I cannot conclude it would be unfair or less efficient should I not allow MLDC or Mr Guillemain to be represented by a lawyer or a paid agent. Therefore the permission sought for representation by the parties is refused.

[27] The application by MLDC to be represented by a lawyer pursuant to s.596 of the Act is declined.

[28] The application by Mr Guillemain to be represented by a paid agent pursuant to s.596 of the Act is declined.

[29] This matter will now be listed for determinative conference.

COMMISSIONER

1 [2013] FCA 291

2 Fair Work Act s.577(a)

3 [2013] FCA 291 at [24]

4 Ibid at [25]

Printed by authority of the Commonwealth Government Printer