| [2017] FWC 3448 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.789FC - Application for an order to stop bullying
Application by E.K
(AB2017/135)
COMMISSIONER SIMPSON |
BRISBANE, 4 JULY 2017 |
Application for an FWC order to stop bullying – Application for representation by Lawyer refused.
[1] This matter involves an application brought under s.789FC of the Fair Work Act 2009 (the Act) by EK (the Applicant) against two named persons VH and VD (Named Persons) who are alleged to have bullied her at work. The employer of both the Applicant and the two named persons is UC (the Employer). The Employer has advised that it is representing itself and the two Named Persons in the matter.
[2] On 25 May 2017 I issued a decision dismissing an application by the Employer to dismiss matter AB2017/135 (s.587 Decision). The matter has been listed for hearing of the substantive matter on 27 and 28 July 2017.
[3] On 19 June 2017, the matter was listed for a telephone Mention whereby the Employer advised it was intending to seek leave to be legally represented. The Employer advised that the Named Persons were also seeking to be legally represented by the same agent as the Employer. The Applicant opposed the Employer and Named Persons being legally represented.
[4] I provided the parties with the opportunity to make submissions as to whether the Fair Work Commission (FWC) should grant permission for the Employer and Named Persons to be represented by a lawyer.
[5] s596 reads 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.”
[6] The Employer submitted that this matter will be dealt with more efficiently if the Employer and Named Persons were permitted to be legally represented. The Employer relied on a finding in my s.587 Decision that application AB2017/135 contained contested facts, and that the final determination of the matter will rely, at least in part, on reaching conclusions in regard to contested versions of events involving the Applicant and the Named Persons.
[7] The Employer submitted it will therefore be necessary to cross-examine the Applicant and any other witnesses the Applicant relies upon to assist the Commission assess the contested facts. The Employer relied on a decision in Hunter Douglas v SSX Services Pty Ltd t/as the Australian Reinforcing Co 1, where permission to be legally represented was granted because there were witnesses that needed to be cross-examined.
[8] The Employer also relied on the decision in Aly v Commonwealth Bank of Australia; Michelle Gentile; Russell Hayman 2, where permission to be legally represented was granted in part, because a determination was required as to whether the facts gave rise to reasonable management action taken in a reasonable manner.
[9] The Applicant disputed that the matter contains sufficient levels of complexity as to warrant the granting of permission for legal representation under s.596(2)(a). The Applicant submitted that no questions of law arise in this matter, and despite the contested facts, the matter is in fact quite simple.
[10] The Applicant conceded that the matter contains a number of supporting documents that require close examination, however, submitted that this was not sufficient to constitute complexity. The Applicant relied on the decision in King v Patrick Projects Pty Ltd 3 where the Fair Work Commission decision stated:
‘[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.’
[11] I do not accept the Employer’s submissions that legal representation should be granted on the basis cross-examination is required. The Commission regularly deals with matters where cross-examination is conducted effectively by self-represented parties.
[12] While this matter is one that contains a range of supporting material, I am inclined to follow the decision in King v Patrick Projects Pty Ltd 4. I am therefore inclined to accept the Applicant’s submission that the matter is not one that can be characterised as complex, and do not find that legal representation is necessary for this matter to be dealt with efficiently.
[13] The Employer submitted that although the Employer has human resources staff, these staff members do not have any experience in conducting hearings in a tribunal or cross-examining witnesses. The Employer submitted that the Employer and Named Persons would be unable to represent themselves effectively, particularly in light of the need to cross-examine the Applicant, and any other witnesses.
[14] The Applicant refuted the Employer’s submission that the Employer or Named Persons are unable to represent themselves. The Applicant submitted that the Employer is a large organisation with considerable resources at its disposal. The Applicant submitted that the Employer had “decades of human resources experiences cumulatively between various staff members, and university level qualifications to match.” 5
[15] The Applicant again relied upon a decision in King v Patrick Projects Pty Ltd 6 where the Fair Work Commission stated:
‘[18] With respect to fairness pursuant to s.596(2)(b) of the Act, the relevant test is not an assessment of the skills and education of the individual employer representative (Mr Burton), but rather it involves an examination of the resources available to the Respondent as a whole. In this matter, the Respondent Patricks Projects is a large organisation with considerable resources at its disposal. Having regard to the internal legal, human resources and other specialist personnel available to the Respondent, we do not consider that it would be unfair not to allow the Respondent to be legally represented.’
[16] The Employer is an organisation that employs approximately 2,400 staff in Queensland. Up to this point the matter has been dealt with competently and effectively by a number of human resources staff members. I am inclined to accept the submission of the Applicant that the Employer has sufficient resources to represent itself in this matter, particularly given that the Applicant is not seeking to be legally represented herself. I also make note of the fact that the Employer has made the decision to also provide resources to the two Named Persons in this matter, and for that reason I am not of the opinion that the Persons Named are unable to effectively represent themselves.
[17] The Employer submitted that the nature of the concerns highlighted in the decision of in Warrell v Walton 7 of an unrepresented litigating party do not directly arise in the present matter. The Employer submitted that a significant factor in the finding of manifest injustice in that case was that applicant was functionally illiterate and brain damaged. The Employer submitted that in this case, the Applicant has demonstrated an ability to pursue the Application and challenge facts and issues. The Employer also referred to Violeta Paunovska v The Commonwealth of Australia (Centrelink).8
[18] The Applicant submitted that although her circumstances are different to those of the Applicant in Warrell, she is relying on the support of her daughter, who, like herself, does not have any legal, human resources, industrial relations or university qualifications. She submitted she would be at a significant disadvantage if legal representation was granted for the Employer and Persons Named.
[19] The Applicant relied on the decision in Chris Lekos v Zoological Parks and Gardens Board T/A Zoos Victoria 9 where permission for an employer to be represented by a lawyer was denied, with Commissioner Lewin holding that ‘No unfairness would ensue from denying the respondent permission to appear where the applicant was self-represented’.
[20] The nature of this application involves an employee alleging she has been the subject of bullying by two other employees who are senior to her and hold managerial positions within the Employer’s organisational structure. The Employer is appearing in the matter and has relied to this point on its internal human resources staff utilising their expertise to support the two Named Persons in refuting the Applicant’s allegations. It is apparent that the Persons Named will receive the support of the Employer’s human resources staff in the course of the hearing and as a result are at somewhat of an advantage over the Applicant. To also grant the Employer and the Named Persons legal representation will lead to further imbalance. I have concluded that it would not be unfair to refuse the application by the Employer and the two Named Persons to be represented taking into account fairness between the parties.
[21] Having had regard to the considerations contained in s.596 I have concluded not to grant the application for legal representation.
COMMISSIONER
1 Hunter Douglas v SSX Services Pty Ltd t/as the Australian Reinforcing Co [2010] FW A 1139.
2 Aly v Commonwealth Bank of Australia; Michelle Gentile; Russell Hayman [2015] FWC 3604.
3 King v Patrick Projects Pty Ltd [2015] FWCFB 2679.
4 Ibid.
5 Applicant’s Reply Submissions in relation to Legal Representation of the Employer and Persons Named at [9].
6 King v Patrick Projects Pty Ltd [2015] FWCFB 2679.
7 Warrell v Walton [2013] FCA 291.
8 Violeta Paunovska v The Commonwealth of Australia (Centrelink) [2011] FWA 2505.
9 Chris Lekos v Zoological Parks and Gardens Board T/A Zoos Victoria [2011] FWA 1520.
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