Representation in unfair dismissal cases

This extract from a decision of the Fair Work Commission is a useful analysis of the principles which it uses when determining whether to grant permission for a party to be represented in proceedings before the Commission.

“Representation

[4] The Respondent sought to be represented which was not opposed by the Applicant. Even so, I am still required to consider whether permission ought to be granted under s.596 of the Act. 1 Granting permission to be represented under s.596 requires the satisfaction of two elements. The first pre-requisite: the presence of one of the criteria under s.596(2), does not immediately invoke the right to representation and establishing satisfaction “involves an evaluative judgment akin to the exercise of discretion.”2 Once that first step is satisfied, the second step “involves consideration as to whether in all of the circumstances the discretion should be exercised in favour of the party seeking permission.”3

[5] The Applicant had submitted a significant amount of material and raised a series of arguments. In Dinov v ANZ Banking Group Ltd T/A ANZ, 4 Deputy President Bull determined that cases that consider a voluminous amount of material are, in the ordinary course, matters involving a higher degree of complexity.

[6] With significant material filed and the prospect of more documentation being provided by the Applicant in reply, given the Applicant’s statement that he has withheld other documents “at the present moment to see which correspondence BHP and agents of: [sic] include in their response. All relevant documents will be included in following submission if required.” 5 The Respondent then submitted that legal representation would enable the Commission to deal with this matter more effectively and narrow the Commission’s task to focus upon the relevant legal principles.

[7] As Deputy President Easton held in Artery v G Case & H Case T/A Gavin Case Marine Services: 6

“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.”

[8] I exercised my discretion and granted permission pursuant to s.596(2) to Mr Cameron of Herbert Smith Freehills. I was satisfied that the matter would be dealt with more efficiently and effectively – and would not unduly prejudice the opposing party – considering the complexity of the matter and the capabilities of the parties. The Applicant was represented by his mother, Ms Fiona Anderson who I note is not a lawyer or paid agent.”

 

Anderson v Central Queensland Services Pty Ltd T/A BHP Mitsubishi Alliance (BMA) (2022) FW C 2880 delivered 27 October 2022 per Lake DP