17 Jul Representation in Unfair Dismissal matters: Clarification by the FWC Full Bench
The recent Fair Work Commission Full Bench (Full Bench) decision Emery v City Of Stirling  FWCFB 199 clarifies when the Fair Work Commission (FWC) should grant permission for legal representation in unfair dismissal matters.
The Appellant was a team leader Security Patrol Officer for the Respondent. At 4pm on 15 January 2018, while off-duty, the Appellant found a baton in the carpark at the Joondalup Shopping Centre. The Appellant was only permitted to carry a baton when performing licenced duties if endorsed to do so by the Respondent, which he was not. After finding the baton, the Appellant picked it up with the intention of giving it in to the Western Australian police. The Appellant never went to a police station. In an unfortunate series of events, the baton was brought into the Appellant’s place of work by the Appellant, and the Appellant asked for a colleague to put the baton into her locker. It was discovered by the Respondent and following an investigation and a show cause process, the Appellant was terminated, and filed an unfair dismissal application.
The matter was listed for a determinative conference instead of a hearing to determine the unfair dismissal matter. Orders were made by Deputy President Binet for the parties to make submissions about whether the FWC should grant permission pursuant to section 596 of the Fair Work Act 2009 (Cth) (FWAct) for the parties to be represented by a lawyer or paid agent. The Deputy President did not grant leave for either party to be represented. This was the ground of appeal that was dealt with by the Full Bench.
Section 596(2) of the FWAct provides:
(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.
The Full Bench grouped these into two sets of grounds: section 596(2)(a) of the FWAct, naming it the “efficiency ground”; and, sections 596(2)(b) and 596(2)(c) of the FWAct, naming them the “fairness grounds”.
The Full Bench considered that the Deputy President had refused permission on the efficiency ground without considering the matter before her. The Full Bench came to this decision based on the circumstances of the matter. In the determinative conference, breaches of three different pieces of legislation needed to be considered, as well as matters related to the Respondent’s policies and procedures.
The Full Bench considered that issues on the fairness grounds related to the matter included “Where the complexity of a case makes it difficult for a party seeking permission to effectively represent themselves”. In this case, examples raised by the Full Bench included: where the Appellant called no witnesses other than himself, and the Respondent called three witnesses, which the Appellant was required to cross-examine; that the Appellant was confused about the status of witness statements and it was unclear to him how he could cross examine them when the witnesses were not called by the Respondent; and, confusion by the Appellant on the issues raised by the Deputy President related to calling witnesses.
Considering the matters above, the Full Bench provided that the Deputy President’s decision to deny the Appellant representation was a miscarriage of her discretion and a denial of natural justice, such that if the Appellant was represented a different decision may have been made by the FWC.
Unfair dismissal matters before the FWC may be complex and include numerous intricacies. Furthermore, an applicant or respondent who is unaccustomed to the procedure of the FWC may be unfairly prejudiced in making their case without representation. Assessing whether a case requires representative assistance is not always straightforward.
Written by Angus Macpherson
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