Wallace v Wealth Solutions Australia Pty Ltd [2016] FWC 4890 (20 July 2016) [2016] FWC 4890 FAIR WORK COMMISSION REASONS FOR DECISION Fair Work Act 2009 s.394 - Application for unfair dismissal remedy Wendy Wallace v Wealth Solutions Australia Pty Ltd T/A Australian Wealth Management (AWS) (U2016/4051) COMMISSIONER WILSON MELBOURNE, 20 JULY 2016 Application for relief from unfair dismissal - application to be represented by a lawyer or paid agent. [1] An application has been made by the Applicant, Wendy Wallace, seeking relief for unfair dismissal, which has been allocated to me for a hearing on its merits. [2] The Respondent, Wealth Solutions Australia Pty Ltd trading as Australian Wealth Management seeks to be represented by a lawyer or paid agent in the forthcoming hearing and provided short written submissions in support of its request. It is not clear from the submissions which of the alternatives of lawyer or paid agent, or both, for which the Respondent seeks representation. [3] The Applicant does not seek to be represented, and objected to the grant of representation in favour of the Respondent and provided short submissions on the subject to be taken into account. [4] For the reasons set out below, I grant permission to the Respondent to be represented by a lawyer or paid agent. Legislation [5] Section 596 of the Fair Work Act 2009 (the Act), which regulates when a party may be represented by a lawyer or paid agent in proceedings before the Commission, provides as follows: “ 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.” Respondent’s submissions [6] The Respondent’s written submissions, provided by email on 19 July 2016, do not specifically identify the part of s.596(2) upon which its application is made. While that is so, it appears it seeks the grant of such representation either for the reason that a grant of permission would enable the matter to be dealt with more efficiently (s.596(2)(a) of the Act), or that it would be unfair if it was not allowed to be represented, because it is unable to represent itself effectively (s.596(2)(b)). A perusal of the Respondent’s submissions does not disclose an intention to rely upon the ground of unfairness between its position and that of the Applicant (s.596(2)(c)). [7] With respect to efficiency and complexity of the matter, the Respondent argues that the grant of permission would result in greater efficiency for the reasons that it is a small business and its principal, Mr Sam Zervides, lacks the skill to effectively represent himself in these proceedings; whereas his nominated representative has such skill and will provide efficiency to the Commission in dealing with the matter, taking into account its complexity. Such submissions obviously extend to the Respondent’s argument that it would be unable to effectively represent itself if it was not represented by a lawyer or paid agent. Applicant’s submissions [8] The Applicant provided short written submissions on the issue of representation, which included the contention that until recently she had herself been represented by a lawyer but was unable to continue that into the future, and that accordingly unfairness would extend to her should the Respondent be given permission for representation in these proceedings by a lawyer or paid agent. Ms Wallace also puts forward that the Respondent has been tardy in filing and serving its material with such being an indication that the Respondent’s representative may not be of assistance to the Commission. She also puts forward that an analysis of the parties’ respective statements demonstrates that there is significant agreement between them and that the matter is therefore not complex. Finally she puts forward that both parties had the benefit of legal assistance in preparing their submissions to the Commission and that accordingly each should be required to represent themselves in the hearing, which I take to be a submission that it would be unfair to her for the Respondent to be represented, if she were not, and that accordingly permission should be refused. Consideration [9] The proper interpretation of s.596 of the Act 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 ”.” [10] 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. 2 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. 3 There is no power in the section extending to the selection of which particular lawyer or paid agent will represent a party applying for permission. 4 [11] 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. 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 A matter which involved issues of credit witnesses and the need for cross-examination has led to a grant of permission for representation. 8 [12] In relation to consideration of the criterion within s.596(2)(b), that it would be unfair if the applicant party was not allowed to be represented because it is unable to represent itself effectively, the Full Bench has found 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 the respondent has a whole. 9 Further, it has been held 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. 10 [13] The argument by Ms Wallace that permission for the Respondent to be represented when she is not is an endeavour to enliven s.596(2)(c). That section enables a grant of permission for representation by a lawyer or paid agent if the Commission is satisfied that it would be unfair not to allow that representation taking into account fairness between the person to be represented and the other persons involved in the same matter. [14] Section 596(2)(c) is one of the jurisdictional bases upon which permission for representation might be granted ; it is not a ground requiring refusal of permission. 11 Consideration of that section does not go to the question of a grant of representation being denied because unfairness would arise to a person who is not represented and does not seek to be represented. Instead, the section examines whether an application for permission for representation is to be allowed. [15] In considering the Respondent’s request for representation, I note that the early stage of this matter involved objections for the continuation of the application on the grounds that the Applicant was not dismissed and that she resigned; that she had not been employed for the minimum employment period; that she earned more than the high income threshold; and that for reason that the business is a small business within the meaning of the Fair Work Act 2009 her dismissal was consistent with the Small Business Fair Dismissal Code. [16] Since the making of those original objections, the Respondent has withdrawn its objection that the application may not proceed for reason of not having served the minimum employment period and earning greater than the high income threshold. [17] However its objection in respect of Ms Wallace not having been dismissed within the meaning of the Act (see s.386) is maintained and so too it appears does it maintain its argument that her dismissal was consistent with the Small Business Fair Dismissal Code, while noting that it has not filed any material in relation to that subject. [18] I also note that within the Respondent’s material there is extensive content about negotiations between it and the Applicant for the settlement of this matter. Significant parts of that material attempt to use the failure of those negotiations to colour its submissions about Ms Wallace. [19] I consider that it would be inconsistent with the grant of permission for representation on the ground of efficiency were the Respondent to endeavour in the course of the hearing to re-agitate its arguments either about the minimum employment period or the high income threshold. Further, it should be noted by the Respondent that if permission for representation is to be granted it will be expected to swiftly and cogently establish, through evidence, the consistency with the Small Business Fair Dismissal Code which it claims, but which it is yet to articulate within its material. [20] In relation to the failed settlement negotiations, the Respondent is advised that little, if any, of that material will be relevant to the proceedings about to be undertaken. While making that comment, I note of course that some material connected with failed settlement negotiations may be relevant to the question of whether or not the Applicant has satisfactorily mitigated any losses she has incurred, noting that such foundation has yet to be laid in the Respondent’s submissions. It may also possibly be relevant in respect of any later application for costs that is properly brought to the Commission, which in any event could only be commenced after the conclusion of the determinative proceedings before me. [21] After considering the totality of the material before me I am satisfied that the criteria within s.596(2)(a) and (b) are sufficiently enlivened for permission to be granted. The Respondent’s representative is requested to consider the foregoing comments about the efficient conduct of the matter and to ensure the presentation of its case meets the standard of efficiency to which its client has committed. [22] For these reasons, I consider that the requirements of s.596 of the Act have been met and grant the Respondent’s request for permission to be represented by a lawyer or paid agent. COMMISSIONER 1 [2013] FCA 291 ; see also New South Wales Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663 . 2 Appellant v Respondents [2014] FWCFB 4297 ; Emily Oratis v Melbourne Business School [2014] FWCFB 3869 [5]. 3 Asciano Services Pty Ltd v Hadfield [2015] FWCFB 2618 [19]. 4 NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663 [24]. 5 King v Patrick Projects Pty Ltd [2015] FWCFB 2679 [15], with reference to Urbanski v MSS Security Pty Ltd [2012] FWA 1789 at [8] . 6 Ibid [17]. 7 Singh v Metro Trains Melbourne [2015] FWCFB 3502 [16]. 8 Changan v Linfox Australia Pty Ltd T/A Linfox Linehaul [2014] FWC 2790 [8]. 9 King v Patrick Projects Pty Ltd [2015] FWCFB 2679 [18]. 10 CEPU v UGL Resources Pty Limited (Project Aurora) [2012] FWA 2966 [16]. 11 Oratis v Melbourne Business School [2014] FWCFB 3869 [10]. 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