Legal representation in the Fair Work Commission

The Fair Work Act makes it tough for lawyers and paid agents to represent parties in cases in that place. By and large however the members of the Commission are reasonably generous in their interpretation of the Act and with some exceptions are reasonably welcoming of the efficiencies which professional representation brings. You be the judge.

“Application for an unfair dismissal remedy.

[1] An application has been made by the Applicant, Ms Qing DAI, seeking relief from unfair dismissal, which has been allocated to me for a determination on its merits.

[2] The Respondent, St Michael’s Grammar School, seeks to be represented in these proceedings by a lawyer and has provided short written submissions in support of its request arguing that a grant of legal representation in its favour would enable the matter to be dealt with more efficiently and that the School is unable to represent itself effectively.

[3] Ms Dai does not seek to be represented, and objects to the grant of representation in favour of the Respondent providing short submissions on the subject to be taken into account namely on the basis that the matter lacks the required complexity and would put her at a disadvantage.

[4] Determination of the question of representation requires consideration of the provisions of s.596(2) of the Fair Work Act 2009 (the 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.

(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.

[5] In particular, St Michael’s Grammar School submits that its circumstances are enlivened by subsections 596(2)(a) (efficiency, taking into account the complexity of the matter) and (b) (the inability of a person to represent themselves effectively). It seeks to be represented by Mr Ben Tallboys, solicitor, from Russell Kennedy.

[6] The proper interpretation of s.596, was considered by Flick J of the Federal Court in Warrell v Walton 1:

“[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”.” 2

[7] It is well established that in order for permission for representation to be granted under this section, the Commission must first determine if there exists a jurisdictional prerequisite to the exercise of discretion by virtue of at least one of the three conditions in s.596(2) of the Act being met. The Commission must then decide whether or not to exercise the discretion to grant permission. 3 The task of determining whether any of the criteria in s.596(2) is satisfied involves the making of an evaluative judgment akin to the exercise of a discretion.4

[8] In respect of s.596(2)(a), even if legal representation would enable a matter to be dealt with more efficiently, a lack of complexity may still mean that permission is refused. 5 Sheer volume of documents or the existence of extraneous issues does not equate to complexity, with the Commission routinely being required to deal with such factors.6 While the consideration of complexity must be treated as a matter of significance in consideration of this criterion, ultimately the issue is whether the grant of permission would enable the matter to be dealt with more efficiently.7

[9] I am satisfied that the relevant complexity of this matter concerns the allegations that had been made, and the findings that would need to be made about them, and that representation of St Michael’s Grammar School by a lawyer may assist the matter to be dealt with more efficiently. The relevant complexity of the matter includes the multiple and repeated contentions advanced by the Applicant, many of which appear not related to the matters requiring determination in these proceedings, and many not even relate to the conduct of this Respondent. It also includes the contentions advanced through the Respondent’s seven witnesses; of necessity they appear to have responded to many of the Applicant’s contentions, but in actuality may not have strictly needed to do so in order to establish its case.

[10] Ms Dai’s contentions appear to include that she was dismissed for reasons of having made complaints to her former employer about bullying and the absence of a safe workplace. On the Respondent’s side, it argues that neither of those factors have anything to do with Ms Dai’s dismissal and that instead she was dismissed for several matters associated with her conduct and for dishonesty. There is therefore relevant complexity associated with establishing the actual reason for termination of employment as well as establishing the extent to which, if any, the factors identified by Ms Dai ought be taken into account in assessing whether she was unfairly dismissed.

[11] Legal representation may assist in filtering those matters needing agitation in the proceedings before me. Delivery of such efficiency though will require the Respondent to exercise restraint both in the scope of the matters it puts into oral evidence as well as the nature, scope and frequency of objections it chooses to pursue in the forthcoming proceedings. While there is clearly some uncertainty as to whether efficiency will actually be delivered by legal representation, I am satisfied that without representation the Respondent’s case in the forthcoming proceedings will likely not fulfil such aspirations of efficiency as I may hold.

[12] It has been held in relation to s.596(2)(b) that the relevant test is not an assessment of the skills and education of the individual representative, but rather an examination of the resources available to a party as a whole; 8 and that an inability to represent oneself would be an inability to represent in a manner which creates a striking impression, or which has an impressive effect, or which is powerful in effect.9

[13] St Michael’s Grammar School argues in support of a grant under this section that it has no experience in advocacy before the Commission and the three staff who would be required to coordinate the case in the absence of legal representation would not be able to narrow the issues in dispute, and that they are in turn, key witnesses in the case. In this case I am not satisfied that the criterion within s.596(2)(b) has been enlivened. I have not met either of the three alternative advocates, however I would think it passing strange that a leading and successful grammar school did not have at its upper echelons of management people who could create a striking effect, or indeed an impressive effect. Certainly, that possibility would not be consistent with my observations of the leaders of successful schools. Successful people lead successful businesses and I doubt that the three nominated senior staff would be unable to lead the school’s case if they were required to do so. There is no evidence before me that would suggest they do not have the requisite capabilities.

[14] As set out above, the decision to grant permission is not merely a procedural step but is a two-step process. First it must be determined if one of the requirements in s.596(2) have been met. Secondly, if the requirement has been met, it is a discretionary decision as to whether permission is granted. 10

[15] Having determined that the only ground enlivened by the Respondent’s application is whether a grant of legal representation would enable the matter to be dealt with more efficiently taking into account the complexity of the matter, I consider that the possibility that there will be a significantly improved handling of the proceedings because of the Respondent’s representation is a factor in favour of the discretion being exercised.

[16] Against that possibility I need to take into account that there is the potential for an imbalance to arise in the proceedings because of the Respondent being represented by a skilled and professional advocate. In her submissions, Ms Dai puts forward several matters that would favour the discretion not being exercised. In particular she argues that her earlier experience before the Commission in an unrelated matter included that there was some dishonesty on the part of the lawyer acting for the Respondent in that matter. She also submits that allowing a lawyer into these proceedings may cause her psychological harm or mean she is unable to remain calm during the proceedings. In relation to these latter issues, while Ms Dai has filed a series of medical reports in these proceedings, none especially appear to go directly to the issue of the proceedings themselves and the style in which they are conducted and how that may be connected with psychological harm.

[17] After considering whether the discretion should be exercised in favour of the Respondent, I do not accept that an earlier experience with a lawyer should particularly sway my decision in this matter and certainly there is no evidence capable of acceptance either that the representative concerned was dishonest or that the person’s conduct in any way has anything to do with these proceedings. While I accept that Commission proceedings may and will be distressing to Ms Dai, I doubt that such would be particularly compounded with legal representation. Just as some lawyers may be seen by an Applicant as intimidating and distressing, so too can managers representing their business.

[18] On balance, I consider that the matter of potential efficiency to be gained through the grant of representation outweigh the matters that Ms Dai refers to. My observation of the matters contained on the file so far are that the factors of distress to which Ms Dai points are likely to arise whomsoever represents the school. It is therefore appropriate to exercise the discretion in favour of the Respondent.

[19] St Michael’s Grammar School is therefore granted permission to be legally represented in the forthcoming proceedings in this matter.

[20] Two further matters arise for consideration of the parties before the proceedings in this matter take place. The first is in relation to s.399 of the Act relating to the mechanism by which the Commission proceeds, whether that be a hearing or a conference. The second is in relation to understanding any objections either party may have to the material filed by the other.

[21] Section 399 of the Act requires that the Commission must not hold a hearing in relation to an unfair dismissal remedy application matter unless the Commission considers it appropriate to do so, taking into account views of the parties and whether a hearing would be the most effective and efficient way to resolve the matter.

[22] Having considered all of the material filed in the matter to date as well as the likely requirement for cross examination of each of the witnesses, together with subsequent determinations of credit and findings of fact by the Commission, I consider it most appropriate to proceed by way of a hearing and not through the means of a determinative conference. I consider that the risk of conducting the proceeding through a determinative conference would be that insufficient material would be before the Commission to properly make the requisite determinations of credit and findings of fact ultimately required for the principal finding of whether or not Ms Dai was dismissed unfairly dismissed in accordance with the criteria in s.387……………….”

Dai v St Michael’s Grammar School (2019) FWC 6857 delivered 4 October 2019 per Wilson C