Unfair dismissal cases and legal representation

In this decision of the Fair Work Commission delivered in an application by an applicant for an unfair dismissal remedy to be legally represented the legal principles which apply to such an application are set out. Having said that it is extremely difficult to estimate the chances of permission being granted and these decisions are probably the least predictable of any of the Commission.

“S.596(2) – Application for permission to be legally represented in unfair dismissal – Criteria in s.596(2) examined.

[1] Mr Andrew Donnola (the applicant) has filed an application with the Fair Work Commission (the Commission) alleging that he was unfairly dismissed. Mr Donnola seeks to be legally represented in the forthcoming unfair dismissal hearing, pursuant to s.596 of the Fair Work Act 2009 (the Act). The respondent employer, Silverleaf Constructions Co Pty Ltd (Silverleaf), opposes the unfair dismissal application.

[2] The matter was subject to a telephone mention on 14 October 2021, at which the applicant’s solicitor, Mr Kutasi was advised that an application for legal representation had not been received and would need to be made.

[3] Following the telephone mention, the applicant’s solicitor filed a Form F53 giving notice that he acts for the applicant.

[4] Mr Kutasi was then advised by email that as stated at the telephone mention, written submissions addressing why permission should be granted pursuant to s.596(2) of the Act, were required to be filed to enable the application for legal representation to be considered.

[5] Written submissions supporting the request for legal representation were subsequently received and are set out below:

“1 The Applicant hereby notifies the Commission that it requests permission to be represented by Kyle Kutasi, Solicitor, of Solve Legal.

2 Pursuant to section 596(2) of the Fair Work Act 2009, the Respondent [sic] contends that allowing it to be legally represented:

(a) would enable the matter to be dealt with more efficiently, taking into account the complexity of the matter; and

(b) it would be unfair not to allow the Applicant to be represented taking into account fairness between the Respondent and the Applicant.

3 The Applicant is not legally trained and has always used the services of the same lawyer with respect to the carriage of this matter since the facts of the alleged dispute arose. He does not have the skills to best present his case.

4 This matter raises a number of technical legal points, such points which would be more efficiently handled by lawyers. This ought to lead to quicker administration of justice in this matter, as delays will likely be more limited and hearings will likely proceed with less requirement for the usual liberties afforded to self-represented litigants.

5 The Applicant would not object to the Respondent being represented.”    1

Section 596(2)

[6] Section 596(2) of the Act is the relevant section to be applied in determining whether legal representation should be granted and is set out below:

“(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.”

[7] While not determinative, the Commission need only find that one of the sub-sections above is satisfied to exercise its discretion to grant permission for a party to be legally represented.

[8] The principles to be applied when determining s.596 applications were considered in Warrell v Walton2 (Warrell) and subsequently adopted by a Full Bench of the Commission in New South Wales Bar Association v McAuliffe.3

[9] In Warrell, Flick J said, at [24]:

“A decision to grant or refuse “permission” for a party to be represented by “a lawyer” pursuant to section 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 section 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 section 596(2) have been taken into account and considered. The constraints imposed by section 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 section 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 section 596(2): i.e., “FWA may grant permission…”. The satisfaction of any of the requirements set forth in section 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] In Wellparks Holdings Pty Ltd t/as ERGT Australia v Mr Kevin Govender,4 the Full Bench stated at [48]:

“The assessment of whether permission should be granted under s 596 involves a two-step process. The first step is to consider whether one or more of the criteria in s 596(2) is satisfied. The consideration required by this first step ‘involves the making of an evaluative judgment akin to the exercise of a discretion’. It is only where the first step is satisfied that the second step arises, which involves a consideration as to whether in all of the circumstances the discretion should be exercised in favour of the party seeking permission.”

Consideration

[11] The respondent’s Form F3 was completed by its Director, Mr McKenzie and states that it does not have a representative. The Form F3 further states that at the time of the applicant’s dismissal, the respondent had one employee, namely, the applicant.

[12] The respondent was advised of the application for legal representation and asked to provide a response, however no response was provided.

[13] The applicant’s written reasons for permission to be legally represented raise two subsections of s.596(2), the first being the criteria under s.596(2)(a) that legal representation would enable the matter to be dealt with more efficiently, taking into account the complexity of the matter. Secondly that it would be unfair not to allow the applicant to be represented taking into account fairness between the applicant and the respondent, s.596(2)(c). 5

S.596(2)(a)

[14] In ASC Pty Ltd v The Australian Workers’ Union and others;6 Gostencnik DP stated:

“[16] In any event the question, for the purposes of granting permission for the reasons set out in section 596(2)(a) of the Act, is not whether ASC can be represented or even effectively represented by in-house resources, rather the relevant question is whether, taking into account the complexity of the matter, the grant of permission to ASC to be represented by a lawyer (in this case one experienced in advocacy and industrial law) would enable the matter to be dealt with more efficiently. The in-house capacity of ASC has a bearing on that assessment but I am satisfied that in this case the grant of permission to ASC for external legal representation will have that result.”

[15] The applicant has submitted that the matter raises “a number of technical legal points”, and such points would be more efficiently handled by lawyers. It is submitted that this ought to lead to quicker administration of justice in this matter, as delays will likely be more limited and hearings will likely proceed with less requirement for the usual liberties afforded to self-represented litigants.

[16] In King v Patrick Projects Pty Ltd,7 with reference to Urbanski v MSS Security Pty Ltd,8 the Full Bench stated:

“[15] The complexity of the subject matter of the proceedings is the key consideration under s.(596)(2)(a) of the Act. In Urbanski v MSS Security Pty Ltd it was found that, even if legal representation would enable a matter to be dealt with more efficiently, a lack of complexity in the matter may still mean that permission to appear is declined.”

[17] Other than the general statement that the matter raises a number of technical legal points, the applicant’s submissions do not elaborate on, or provide any guidance as to what the technical legal points in the application actually involve or what matters of complexity arise.

[18] In this regard, the Commission has considered the applicant’s written outline of submissions filed on 12 November 2021 (an extension of time was granted for the late filing 9). While the outline of submissions makes reference to relevant sections of the Act and associated case law, it is not obvious that any ‘technical legal points’ have been raised or alluded to, nor that the matter has any particular complexity.

[19] Having regard to the applicant’s submissions on legal representation and his outline of submissions concerning the unfair dismissal, there is no demonstrated ‘complexity’ including technical legal points or otherwise that the Commission ought to take into account in considering whether legal representation would enable the matter to be dealt with more efficiently.

[20] It is further stated that the applicant is not legally trained and has always used the services of the same lawyer with respect to the carriage of the matter since the facts of the alleged dispute arose, and that the applicant does not possess the skills to ‘best’ present his case.

[21] In considering these factors it is appropriate to have regard to the note that accompanies s.596(2) which is set out below:

“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.”

[22] Considering that the vast majority of applicants in unfair dismissal matters before the Commission do not have legal training, the absence of such training in itself is not a sufficient reason for the Commission to grant permission for legal representation. It is not comparable to having difficulty reading or writing as set out in the note to s.596(2).

[23] Legal representation may allow the applicant to present his ‘best’ case, however it was not submitted that as per s.596(2)(b) that it would be unfair not to allow legal representation as the applicant is unable to represent himself or represent himself effectively.

[24] The applicant’s witness statement indicates that he operated his own construction business for some 20 years as a sole trader which included being responsible for project management. 10 When employed by the respondent, Mr Donnola states that he managed two construction projects and that his role was ‘highly autonomous’.11

[25] The Commission notes that there is a significant amount of annexures to the applicant’s witness statement, however it was not submitted and nor does the Commission find that this of itself establishes any complexity.

[26] Regarding complexity, the Full Bench in King v Patrick Projects Pty Ltd said:

“[17] We do not find that this matter is one that can be characterised as complex. The Members of the Commission routinely deal with applications which are voluminous in size and riddled with materials extraneous to the application. This commonplace occurrence does not constitute legal or factual complexity. Sheer volume of documents or the existence of extraneous issues to the application will not in and of itself equate to complexity for the purposes of s.(596)(2)(a) of the Act.”12

[27] The fact that the applicant has used the services of Mr Kutasi since the facts of the alleged dispute arose may lead to the matter being dealt with more efficiently, but it was not revealed on what basis this should be a consideration in lieu of the applicant representing himself.

[28] It has not been demonstrated to the Commission’s satisfaction that granting permission for legal representation under s.596(2)(a) would enable the matter to be dealt with more efficiently, taking into account the complexity of the matter.

S.596(2)(c)

[29] While the applicant’s submissions have raised the criteria contained at s.596(2)(c) that it would be unfair not to allow the applicant to be represented taking into account fairness between the applicant and the respondent, nothing further is put. The respondent is a small business with one employee, Mr McKenzie, its Director, who is representing Silverleaf in these proceedings.

[30] It is not obvious to the Commission, with the respondent also not being legally represented, that any unfairness would be created should legal representation not be permitted taking into account fairness between the applicant and the respondent.

[31] Other than repeating what is stated at s.596(2)(c) in the written submissions, the Commission has no material before it to allow it to be satisfied that it would be unfair not to allow the applicant to be legally represented taking into account fairness between the applicant and the respondent.

S.596(2)(b)

[32] Sub-section 596(2)(b) provides that a reason that the Commission may permit a party to be legally represented is because it would be unfair not to allow the person to be represented because the person is unable to represent himself or itself effectively.

[33] This sub-section has not been referred to in the applicant’s submissions although the applicant’s submission that he is not legally trained and does not have the skills to best present his case, would appear to be the most relevant arguments for the Commission to consider under this sub-section.

[34] As stated by Flick J in Warrell, it is apparent from the very terms of s.596, that a party in a matter before the Commission must normally appear on their own behalf. On this basis it is accepted that parties will not necessarily be legally trained or have the advocacy skills to present their case in its best light.

Conclusion

[35] For the reasons stated above, the Commission is not satisfied that the applicant has established that any of the criteria under s.596(2) are invoked for the Commission to exercise its discretion to grant permission for the applicant to be legally represented, and as such, permission is refused.”

Donnola v Silverleaf Constructions Co Pty Ltd (2021) FWC 6336 delivered 18 November 2021 per 2021 – Bull DP