Gupta v Murrin Murrin Operations Pty Ltd [2016] FWC 2300 (12 April 2016) [2016] FWC 2300 FAIR WORK COMMISSION DECISION Fair Work Act 2009 s.394 - Application for unfair dismissal remedy Kamal Gupta v Murrin Murrin Operations Pty Ltd (U2016/322) COMMISSIONER CAMBRIDGE SYDNEY, 12 APRIL 2016 Termination of employment - representation by lawyers and paid agents. [1] This Decision involves an application for unfair dismissal remedy made pursuant to s.394 of the Fair Work Act 2009 (the Act). The application was made by Kamal Gupta (the applicant). The respondent employer is the Murrin Murrin Operations Pty Ltd (the employer). [2] This Decision is made in respect to the discrete question as to whether the Fair Work Commission (the Commission) should grant permission for the employer to be represented by lawyers or paid agents (the representation question). [3] The application was filed on 24 January 2016, and the applicant is not represented. The employer filed a response to the application dated 3 February 2016, and at the same time Clayton Utz lawyers filed a notice of representative commencing to act on behalf of the employer. [4] The file indicates that conciliation of the matter occurred on 24 March 2016. The matter has been scheduled for Hearing/Conference on 29 April 2016 in Perth. [5] The applicant has formally raised objection to the employer being represented by lawyers or paid agents. On 5 April 2016, the applicant sent a written communication to Clayton Utz , which set out the basis for his opposition to the employer being granted permission to be represented by lawyers or paid agents. The Commission was provided with a copy of this communication. [6] Clayton Utz provided written submissions dated 7 April 2016, in response to the applicant’s objections raised in respect of the representation question, and in support of permission being granted for the employer to be represented by lawyers or paid agents. The Parties have confirmed their consent to the representation question being determined upon the documentary material which has been filed. [7] I have examined and considered the filed documentary material including, in particular, the written submissions made by Clayton Utz on the representation question as the basis for this Decision. Consideration [8] The question of representation in proceedings before the Commission is governed by section 596 of 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. 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 (c) is a bargaining representative.” [9] The legislative intentions underpinning s.596 of the Act have been the subject of various Decisions of the Commission and Fair Work Australia. Further, the approach to consideration of the representation question has been examined by way of Judicial Review in the (incorrectly named) Judgment of Warrell v Walton 1 (Warrell) and it is relevant to note, in particular, paragraph 25 of that Judgment. [10] Subsection 596 (2) of the Act includes three factors which separately or in combination, provide basis upon which the Commission can grant permission for a lawyer or paid agent to represent a Party in proceedings such as the Hearing/Conference of a claim for unfair dismissal. The three factors which can be identified in paragraphs (a), (b) and (c) of subsection 596 (2), can be paraphrased as: (a) complexity/efficiency; (b) inability/effectively; and (c) fairness. [11] In this case, the employer’s representatives have submitted that those factors found in subsections 596 (2) (a), (b) and (c) of the Act, respectively involving, complexity/efficiency, inability/effectively, and fairness, all operated to provide basis for the Commission to grant permission for the employer to be represented by lawyers. Conversely, the applicant stated that he strongly objected to the employer being granted permission for legal representation particularly because he was representing himself, and that the employer was a large, well-resourced organisation. Further, the applicant asserted that the case did not involve any particular complexity. The applicant suggested that these factors operated to establish that the Commission should refuse permission for the employer to be represented by lawyers. Complexity/Efficiency - Subsection 596 (2) (a) [12] The employer’s representatives submitted that the matter involved sufficient complexity such that its determination would be assisted by legal representatives. The complexity was asserted to arise from the potentially complex legal and factual disputes surrounding the applicant’s unfair dismissal claim. Further, it was submitted that the matter involved a significant volume of evidence which was to be provided by a number of witnesses and that the involvement of legal representation would assist to ensure efficiency with the Hearing of the case, particularly given that it was listed for only one day. [13] The applicant asserted that the matter was not as complicated as was being “projected” by the employer. The applicant said that the case was a simple fact-finding matter. [14] Upon examination of all of the material which has been filed, and a consideration of any contests that may arise from it, I am unable to recognise a level of complexity beyond that which would ordinarily be found in a routine unfair dismissal matter. Inability/Effectively - Subsection 596 (2) (b) [15] The employer advanced an argument that it would be disadvantaged if it was unable to have a lawyer represent it. It was asserted that the particular persons who would otherwise advocate for the employer had no experience appearing in a Hearing before the Commission. Further, it was submitted that the employer would be unreasonably disadvantaged in circumstances where it’s in-house General Counsel was currently on indefinite leave, and a person acting in that capacity would be required to advocate on behalf of the employer. [16] It was further submitted that the employer would face an inability to effectively represent itself because of the requirement that a particular person who would otherwise advocate the case for the employer, Ms Wylie, was required to give evidence in the Hearing. It was therefore asserted that to act both as an advocate and a witness where matters of fact may be complex, and where witnesses would be subject to cross-examination, may prevent the employer from representing itself effectively. [17] It should be noted that the difficulties associated with being both advocate and witness would be shared by the (self-represented) applicant. [18] Upon examination of the submissions made, I am not convinced that the employer could not effectively represent itself without lawyers. I believe that given the size of the employer’s operation which includes specialist staff in a “ small human resources team ”, those who would represent it would be capable of making a “striking impression” or be “impressive” or be “powerful in effect”. Fairness - Subsection 596 (2) (c) [19] The issue of fairness between the Parties is a matter of recognised significance. In this instance both Parties have made submissions which have addressed the question of fairness. [20] The employer submitted that unfairness would arise if it were denied an opportunity to be represented by lawyers. The employer submitted that unfairness would arise if it was denied an opportunity to be represented by lawyers because it did not have legally trained employees with previous experience appearing before the Commission as alternative advocates. [21] The applicant submitted that no unfairness would arise if the employer was not legally represented. The applicant stressed that he was unrepresented and there would be unfairness if the employer was permitted legal representation. [22] In this instance, if permission for legal representation for the employer was granted there would appear to be a significant imbalance created because the applicant would be representing himself while the employer obtained external legal representation. Particularly given the size of the employer, there would also appear to be little unfairness created if the employer was required to utilise its own staff, some of whom may be legally trained or qualified, albeit without significant experience in advocating in unfair dismissal matters. It should also be recognised that the applicant would be similarly inexperienced. [23] In this instance the determination of the representation question has been strongly influenced by the particular factors regarding fairness between the Parties, and the requirement for informality, as was recognised by His Honour in the Warrell Judgement; “ The appearance of lawyers to represent the interests 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 .” 2 [24] In the present circumstances, applying in particular, the reasoning contained in the Judgment in the Warrell case, I consider that unnecessary formality would be created by the granting of permission for legal representation. Further, a manifest unfairness between the respective Parties would emerge if permission was granted and an imbalance created between an unrepresented applicant against the employer’s external legal representatives. The resultant imbalance created by the appearance of more advantageous representation of the employer against the applicant should be avoided, particularly in circumstances where complexity has not been established. Therefore, the fairness criterion has, in this instance, operated strongly against the granting of permission. [25] In view of the conclusions that I have reached in respect of each of the relevant aspects of subsection 596(2) of the Act, the permission sought by the employer to be represented by lawyers or paid agents is refused. COMMISSIONER 1 Warrell v Walton [2013] FCA 291. 2 Ibid @ paragraph 25. Printed by authority of the Commonwealth Government Printer <Price code C, PR578984>