Legal representation in the Fair Work Commission

Here is an extract from a recent decision of the Fair Work Commission in the course of an unfair dismissal case dealing with the legal principles involved in determining an application by a party that it be permitted to be legally represented.

“Permission to be represented

[3] The Respondent seeks permission to be legally represented pursuant to s.596(2) of the Fair Work Act 2009 (Cth) (the Act) which provides:

“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 parties) the person and other persons in the same matter.”

[4] Considering whether to grant permission involves a two-step process. First, the Commission must consider whether one or more of the criteria in s.596(2) is satisfied. This involves an evaluative judgment akin to the exercise of a discretion. If this first step is satisfied, the second step is to consider whether in all the circumstances the discretion should be exercised in favour of the party seeking permission. 2

[5] I am satisfied that granting permission for the Respondent to be legally represented would enable the matter to be dealt with more efficiently, taking into account the complexity of the matter. There is some factual complexity and legal complexity in the matter, especially in relation to the rights and obligations of the parties. In concluding that the Applicant was an employee and not an independent contractor, I determined that the contractual arrangements between the parties provided for a remuneration structure that entitled the Applicant to payment only upon achieving specified sales and/or investment targets. The hearing will involve examination of the effect of these contractual terms in assessing any compensation that may be payable if the dismissal is found to be unfair. Further, the hearing will involve up to six witnesses in circumstances where it is likely that significant cross-examination will be involved. I consider that it will likely assist the Commission and the parties to have a representative who is familiar with relevant legal principles, is able to distinguish relevant and irrelevant evidence and who is likely able to conduct the cross-examination more efficiently than if permission were not granted. I am fortified in this conclusion in circumstances where there appears to be a degree of animus between the Applicant and the Respondent’s director, Mr Friedman. At the hearing in relation to this issue, neither party cavilled with this observation and the relevance of it to the granting of permission.

[6] The Applicant opposed the granting of permission, and in the alternative sought that any permission be granted for the purposes of cross-examination only. However, I do not consider that this is an efficient or appropriate alternative to the granting of permission generally. The Applicant also contends that the matter is not sufficiently complex to warrant permission being granted. He referred to King v Patrick Projects Pty Ltd 3 and Bawley v Trimatic Management Services Pty Ltd.4 However, each case must be considered on its own merits and neither decision leads me to arrive at a different assessment in this case. Further, as the Full Bench in Singh v Metro Trains5 made clear, it is not necessary to make a finding of complexity:

“Ms Singh’s contention that her case was not complex implicitly involved the proposition that a finding of complexity was necessary in order for the criterion in s.596(2)(a) to be satisfied. This is not the case. Certainly, the provision requires the complexity of the matter to be taken into account. That means the consideration of complexity must be treated as a matter of significance in the process of determining whether the criterion is satisfied.

But ultimately the issue under s.596(2)(a) 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; for example, an appeal may be dealt with more efficiently by granting permission to allow the legal representatives who appeared in the matter at first instance to also appear in the appeal. Therefore the characterisation of a matter as not being complex does not itself necessarily mean that the s.596(2)(a) consideration is incapable of satisfaction.” 6

[7] I am also satisfied that it would be unfair not to allow the Respondent to be represented because it is unable to represent itself effectively. I accept the Respondent’s submissions that Wavin Technologies Pty Ltd is a small start-up business without a dedicated Human Resources department or personnel – and that the director, Mr Friedman, has no legal training, experience or skill with Commission proceedings and no staff able to represent or assist him with the legal issues in the matter. The Applicant provided a short extract of a discussion between himself and Mr Friedman, which he submitted evidenced that Mr Friedman was both articulate and was using lawyers for the purpose of intimidating the Applicant. I am not persuaded that the extract provided reveals anything that challenges the grounds upon which s.596(2)(b) is relied on by the Respondent. It is not to the point that Mr Friedman may be articulate and have knowledge of the allegations. Further, whether the Respondent has grounds to take other legal action against the Applicant is also not necessarily relevant to whether the criteria in s.596(2) are satisfied. I am also not satisfied that granting permission would be unfair to the Applicant.

[8] Having been satisfied that the criteria in s.596(2)(a) and (b) are met and my discretion enlivened, I am satisfied that it is appropriate to grant permission for the Respondent to be legally represented. On balance I consider that the potential efficiency to be gained from granting permission, especially in the context of a degree of animus between the parties, together with the Respondent’s lack of knowledge and expertise, makes it appropriate to grant permission and I do so.”

Course v Wavin Technologies Pty Ltd (2022) FWC 2299 delivered 31 August 2022 per O’Neill C