The Fair Work Act Generally and Especially Section 386 on the Meaning of \"Dismissed\" as Highlighted Here can Create Legal Technicality Nightmares and Perverse Unintended Over-Reliance icon

The Fair Work Act Generally and Especially Section 386 on the Meaning of "Dismissed" as Highlighted Here can Create Legal Technicality Nightmares and Perverse Unintended Over-Reliance


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Initial Submission to the Fair Work Act Review

By Dr Mark Drummond

17 February 2012


The Fair Work Act Generally and Especially Section 386 on the Meaning of "Dismissed" as Highlighted Here can Create Legal Technicality Nightmares and Perverse Unintended Over-Reliance

Upon Lawyers and Case Law

such that

Section 386 and Other Parts of the Fair Work Act 2009 Should be Fully Codified to Totally Remove All Reliance Upon Case Law and Lawyers to Determine Whether a Case Falls Within s386(1) on the One Hand or s386(2) and s386(3) on the other, and Precisely what the Proof Burdens are for Each of s386(1), s386(2) and s386(3)


1. Up front, to provide some brief background: I am not a member of any political party or union, and I should also declare that I sought an unfair dismissal remedy through Fair Work Australia (FWA) in late 2009 (case U2009/12914) after losing my job following what I believe was an overwhelming stream of maladministration, repudiation, dishonesty, bullying, "mobbing" (see definition in paragraph 5 below) etc. after I raised serious concerns about several very serious administrative, ethical and client service quality matters in 2008 and 2009 following a major organisational restructure which took effect at the start of 2008, as a non-union employee in a highly unionised public sector vocational education and training workplace in which I was made to feel as though I might as well have had no workplace rights whatsoever.


2. Fair Work Australia phone advisers – who came across to me as competent, courteous and well-drilled at all times – led me to consider either an unfair dismissal claim or a general protections dismissal claim, but I don't recall anyone suggesting to me that I should perhaps have made a general protections claim for a situation not involving dismissal. I was advised by several people outside of FWA with experience in workplace disputes that I should put in an unfair dismissal application whilst also being told that I might have had a stronger case under general protections dismissal provisions. As a non-lawyer with a wife and three children, the general protections option seemed to me more intimidating and potentially burdensome to my family and I than the unfair dismissal option, as a general protections claim could quickly escalate into the Federal Magistrates Court, whereas unfair dismissal hearings are supposed to be informal, non-adversarial, absent of legal technicality and so on, if the Fair Work Act 2009 itself and accompanying fact sheets and information sheets are to be believed. But the Fair Work system reality I experienced bore virtually no resemblance at all to the seemingly quite enlightened system described in the Fair Work Act 2009 itself, and these glowing fact and information sheets. I found the unfair dismissal process to be a complete legal technicality nightmare in which relevant factual events in my case were completely smothered and shut out by an overwhelming level of case law, legal technicality, and the skill of an experienced legal team allowed to operate against me.


3. This current submission here deals mainly with what I consider to be extremely serious defects in Section 386 of the Fair Work Act 2009 which I believe significantly undermine the quality of the Fair Work Act's unfair dismissal provisions at their very heart – namely, the very meaning of the word "dismissed" and the associated proof burdens.


4. In addition to what follows below here in relation to Section 386 and closely associated matters, I'd also like to make further submissions to your review by 2 March 2012, on matters including the following which I list here now in the hope that your review panel and other submitters may have similar or overlapping ideas:


(a) parts of the Competition and Consumer Act 2010 (previously within the Trade Practices Act 1974 and State and Territory Fair Trading Acts) which I believe should be brought into the Fair Work Act 2009 to better cope with really nasty cases involving serious levels of dishonesty etc., and to help overcome jurisdictional silo problems which act to divide, conquer and oppressively over-burden people seeking remedies – especially Sections 31 and 153 on misleading conduct relating to employment, in Chapters 3 and 4 of Schedule 2 – The Australian Consumer Law;


(b) parts of the New Zealand Employment Relations Act 2000 which could be considered for incorporation into our Fair Work Act 2009 – perhaps especially Part 9 on personal grievances, disputes, and enforcement, which may provide a more coherent and efficient approach to a suite of matters dealt with in separate jurisdictional silos across the Fair Work Act 2009 including and extending beyond unfair dismissal and general protections;


(c) the manifest inadequacy of current Fair Work Act unfair dismissal provisions and the six month pay compensation limit for really nasty situations such as those involving the "mobbing" of meritorious reporters of wrongdoing in the workplace – including whistle-blowers (i.e. intentional bullying, manipulating etc. by two or more people acting in collaboration fully intending to terminate employment as a reprisal, often in conjunction with covering up of the wrongdoing that motivated the reporting of wrongdoing) – such that for some cases there should be no limit on compensation levels; we often read about cases in the papers or hear of cases through our personal networks where vicious workplace sociopaths are operating and employees are too frightened to speak out against wrongdoing, and the Fair Work Act seems to offer little or no protection to employees in cases where they're victims of vicious reprisals in very nasty situations after they've made extremely meritorious efforts to challenge very serious wrongdoing in their workplaces; the Fair Work Act's current unfair dismissal provisions only seem likely to provide justice in practice for cases at the most simplistic end of the complexity spectrum, whereas real life situations are typically far from simple;


(d) Enterprise Agreements from the perspective that many are so badly written, ambiguous and uncertain to extents such that the Federal Court or High Court might be expected to rule that they are not even valid and legally enforceable agreements, because they fall below the standard of clarity, certainty and so on required to create legally sound and binding agreements;


(e) inadequate and confusing definitions of temporary employees, so-called (but scarce little called) "outer limit contract" employees, and casual employees – highlighting the need for vastly sharper definitions within the Fair Work Act and in Enterprise Agreements etc. so that parties in FWA cases and FWA itself – and people interacting in workplaces before matters come before FWA, so FWA hopefully isn't needed – can avoid significant time wasting and personal distress just to establish what category of employee a person is in a given situation – let alone what parts of the Fair Work Act and Enterprise Agreements etc. apply to them, and what an employee's workplace rights, terms and conditions are accordingly;


(f) the need for vastly better fact sheets and information sheets on DEEWR or FWA websites to assist victims of adverse actions seeking to make general protections claims in cases not involving dismissal (i.e. termination at the initiative of the employer) or at least not deemed by FWA to involve dismissal;


(g) the need for vastly better fact sheets and information sheets on DEEWR or FWA websites to assist people seeking to appeal to the Full Bench of FWA, in relation to any relevant forms, processes, conventions and protocols that parties need to be aware of and conform to;


and


(h) the need to allow joint claims under both unfair dismissal and general protections provisions to overcome the jurisdictional silo divide and conquer situation that occurs at present – if a person has been subject to a nightmare experience in their workplace at the hands of a vicious bullying workplace sociopath, for example, or two or more of such people operating in concert, and ends up unemployed or otherwise adversely affected, the last thing they and their families or dependents (if in a family situation) need or should be expected to contend with is a galling legalistic process or series of legalistic processes just to determine the part of the Fair Work Act (unfair dismissal or general protection or any other part) for which Fair Work Australia has jurisdiction to handle their case – in other words, an apt approach would be have FWA tell a person seeking a remedy through FWA whether FWA considers it apt to consider a matter as an unfair dismissal case or a general protections dismissal case or a general protections case not involving a dismissal, because failing to do this effectively expects a person applying for a remedy through FWA to know as much as FWA members and workplace law experts, which is simply absurd for a Fair Work system supposedly accessible to non-lawyer parties, and really very unreasonable, harsh and oppressive.


5. In relation to the term "mobbing", which I've used in paragraphs 1 and 4(c) above, I believe that "mobbing" cases should well and truly fall within the jurisdictional scope of the Fair Work Act's unfair dismissal provisions, irrespective of what type of temporary contract or "outer limit contract" or whatever type of contract the mobbing victim is employed under, so I believe Section 386 and any other relevant parts of the Fair Work Act need to be made more inclusive accordingly. Mobbing is defined in a 1 September 2011 Canberra Times newspaper article titled ' Bureaucrats urged to dob-in bullies' by Noel Towell (see page 5) as follows:


… in the wake of the edict from the top, the Australian Manufacturing Workers Union, representing a high profile bullying victim, has warned against a sinister form of harassment that is not covered by any protocols currently in place. ''Mobbing'' is described as a particular type of harassment that is different from the traditionally understood definition of bullying as the abuse of power. … mobbing is recognised by experts as an emotional assault beginning when an individual becomes the target of disrespectful and harmful behaviour. Then, through innuendo, rumours, and public discrediting, a hostile environment is created in which one individual gathers others to take part in malicious actions to force a person out of the workplace.


6. For now my submission focuses on what I consider to be the manifest defects of Section 386 of the Fair Work Act 2009, and related concerns including concerns about the use of two-tiered legal teams and any lawyers for that matter in Fair Work Australia matters supposedly absent of legalism to the point where lawyers simply shouldn't be necessary, so my submission here certainly challenges any claims that the unfair dismissal provisions in the Fair Work Act represent an improvement upon those in the Workplace Relations Act 1996 both before and after the Work Choices changes came into effect in early 2006.


7. Starting on the next page my submission now presents the following four separate attempts to articulate defects of Section 386 which call for significantly improved clarification in wording to the point of full crystal clear codification, and related concerns about excessive levels of legal technicality, excessive reliance upon case law, and the validity of and need for multiple lawyer legal teams and lawyers generally in Fair Work Australia matters, and whilst there is some repetition here, I include it all in the hope that people with an interest in Section 386 can examine a case example of the efforts of a non-lawyer trying to grapple with (or flounder with as I'm happy to admit) a stunningly complex, confusing and even contradictory component of the Fair Work Act 2009, and please note that I have a PhD (thesis at http://members.webone.com.au/~markld/PhD/thesis.html) and university medals in maths and engineering, and I've also completed an Advanced Diploma in Legal Practice (in 2009 by coincidence), so a point I effectively make here is that if someone with an education, legal knowledge and research skills like mine can find Section 386 etc. impossibly difficult to grapple with, what hope would a person with average education levels etc. have to even prepare an application for an unfair dismissal remedy etc., especially if FWA allows a highly skilled legal team to operate against the person?:


(a) the first (pages 5-9 below) is a statement prepared in November 2010, and sent to a small number of people since, requesting amendments to the Fair Work Act 2009 to fully clarify Section 386 and the meaning of the word "dismissed";


(b) the second (pages 10-21) is a statement I prepared for a 15 July 2010 FWA Full Bench hearing;


(c) the third (pages 22-24) is an extract from another November 2010 statement sent to a small number of people; and


(d) the fourth (pages 25-35) is a compilation of a few extracts from my Form F7 Notice of Appeal, dated 25 May 2010, of relevance to the concerns about Section 386 raised herein.


^ Request for Amendments to the Fair Work Act 2009 to Fully Clarify Section 386 and the Meaning of "dismissed"


1. I hereby request amendments to the Fair Work Act 2009 (henceforth "the Act") which add definitions to Section 386 (or the Dictionary in Section 12, or elsewhere within the Act) that fully codify a clear meaning of the term "dismissed", and associated exclusions and counter-exclusions, and remove all reliance upon case law interpretations and knowledge of contract law technicalities that non-lawyer parties for whom the Act is clearly intended cannot fairly and reasonably be expected to know about or check up on when preparing submissions and arguments for unfair dismissal cases, for reasons as below.


Section 386 Clashes with the Fair Work Act's Intention that Fair Work Australia Conduct Unfair Dismissal Cases in a Manner that is quick, flexible, informal, fair, just, open, transparent, and absent of technicalities, lawyers and paid agents etc.


2. The amendments called for as above are needed to comply with the substance and legislative intention of Sections of the Fair Work Act 2009 including 381, 577 and 596.


3. The Fair Work Act 2009 has lacked clear definitions of the word "dismissed", and associated exclusions and counter-exclusions, throughout its operation since 1 July 2009, and has therefore relied far too heavily on case law interpretations and contract law technicalities which non-lawyer parties are bound to find extremely complex and unfair, in terms of research and legal understanding burdens, leaving parties in unfair dismissal cases with jurisdictional exclusion and counter-exclusion proof burdens that are extremely unclear, making it largely or wholly impossible to properly prepare submissions and arguments for unfair dismissal cases, to a point which brings Section 386 into stark conflict with Fair Work Australia's duties to handle unfair dismissal cases in a manner that is "quick, flexible and informal" (as required by s381), "fair and just", "open and transparent" and absent of "unnecessary technicalities" (s577), and generally absent of legal representatives or other paid agents (s596).


^ Terms in Section 386 that Need to be Clearly Defined


4. The Fair Work Act 2009 does not contain satisfactory definitions of the terms "unfair dismissal", "unfairly dismissed" and "dismissed" that appear in Sections 385 and 386 of the Act, because the Act contains no definitions at all for the following terms and phrases that appear in and are relied upon in s386, and would therefore need to be clearly defined in the Act to fully clarify the meaning of "unfair dismissal", "unfairly dismissed" and "dismissed":


(a) in s386(2)(a) – "a specified period of time";


(b) in s386(2)(a) – "a contract of employment for a specified period of time";


(c) in s386(2)(a) – "employed under a contract of employment for a specified period of time";


(d) in s386(2)(a) and s386(2)(b) – "the employment has terminated";


(e) in s386(3) – "avoid the employer's obligations under this Part"; and


(f) in s386(3) – "a substantial purpose of the employment of the person under a contract of that kind is, or was at the time of the person's employment, to avoid the employer's obligations under this Part".


5. Paragraph 1532 of the Fair Work Bill 2008 Explanatory Memorandum states as follows:


Paragraph 386(2)(a) reflects the common law position that termination in these circumstances would not be a dismissal. The fact that an employment contract may allow for earlier termination would not alter the application of this provision as the employment has terminated at the end of the period, task or season. However, if a person engaged on this sort of contract is terminated prior to the end time specified in the contract, they may seek an unfair dismissal remedy if they satisfy the other requirements.


6. The statement "The fact that an employment contract may allow for earlier termination would not alter the application of this provision", in paragraph 1532 of the Explanatory Memorandum as above – especially the phrase "would not alter the application of this provision", indicates that "contract[s] of employment for a specified period of time", for the purposes of s386, do include so-called "outer limit" employment contracts, for which employer and employee both have rights to terminate the employment before contract end dates after giving reasonable notice.


7. The statement "if a person engaged on this sort of contract is terminated prior to the end time specified in the contract, they may seek an unfair dismissal remedy if they satisfy the other requirements", in paragraph 1532 of the Explanatory Memorandum, indicates that "a contract of employment for a specified period of time", for the purposes of s386, does not include "outer limit" employment contracts, because with such outer limit contracts employers do have the right to terminate the contract after giving notice, and, indeed, this ability of employer or employee to terminate early with notice is the very feature of outer limit contracts that distinguishes them from so called true "contract[s] of employment for a specified period of time" which have fully fixed start and end points.


8. Under the Workplace Relations Act 1996 operating prior to 1 July 2009, outer limit contracts did not fall within the definition of "a contract of employment for a specified period of time", in line with the case law referred to in Note 1 at the end of s638(1) of the Workplace Relations Act (or s170BCA(2) in earlier versions), as follows:


The expression employee engaged under a contract of employment for a specified period of time (used in paragraph (a)) has been addressed in a number of cases before the Industrial Relations Court of Australia, including, in particular, Cooper v Darwin Rugby League Inc (1994) 57 IR 238, Andersen v Umbakumba Community Council (1994) 126 ALR 121, D’Lima v Board of Management, Princess Margaret Hospital for Children (1995 1996) 64 IR 19 and Fisher v Edith Cowan University (unreported judgment of Madgwick J, 12 November 1996, No. WI 1061 of 1996).


9. Australian Industrial Courts and Tribunals have maintained a very consistent interpretation of the meaning of a contract of employment for a specified period of time – at least from the time of the Cooper and Andersen cases in the Note 1 as above in 1994 until 30 June 2009, such that outer limit contracts did not fall within the definition throughout this period. So with such strong definitional inertia, if the legislature intended for the Fair Work Act 2009 to operate with a new definition of a contract of employment for a specified period of time that included outer limit contracts that previously fell outside of the definition, then surely such a change should be made clear through definitions contained in the actual body of the Act itself. The statement in paragraph 1532 of the Explanatory Memorandum that "The fact that an employment contract may allow for earlier termination would not alter the application of this provision" doesn't seem adequately prominent to signal what – according to this wording in the Memorandum – would be such a significant change in the definition of a contract of employment for a specified period of time that could alter the application of unfair dismissal laws to any of the many public sector employees in the Australian Capital Territory and elsewhere who are employed on outer limit employment contracts.


10. Paragraphs 3-9 highlight significant levels of unresolved ambiguity, contradiction and case law reliance in Section 386, as it currently stands, which can only be overcome by amending the Fair Work Act 2009 to provide fully codified definitions of the terms listed in paragraph 4 above that remove all reliance upon case law interpretations and complex contract law understandings, fully clarify the meaning of the word "dismissed", and fully clarify the proof burdens unfair dismissal parties face for the exclusions and counter-exclusions currently expressed in the far from clear forms of subsections 386(2) and 386(3) of the Act.


11. The amendments called for in paragraphs 1-10 above can confirm once and for all whether or not an "outer limit" employment contract is considered to be "a contract of employment for a specified period of time" for the purposes of Section 386 of the Act, whereas Section 386 in its current form leaves considerable doubt as to whether or not an "outer limit" employment contract is considered to be "a contract of employment for a specified period of time".


^ Amendment Needed to Overcome the Perverse Incentive to Allow Representation by Lawyers and Paid Agents to Compensate for the Lack of Clarity of Section 386


12. Subsection 596(2) of the Act, titled Representation by lawyers and paid agents, states that:

(2) FWA may grant permission for a person to be represented by a lawyer or paid agent in a matter before FWA 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 FWA 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.


13. The extreme lack of clarity of Section 386 means that all unfair dismissal cases involving arguments about the exclusions and counter exclusions of subsections 386(2) and 386(3) will tend to be vastly more complex than they'd be if Section 386 provided clear definitions, such that Fair Work Australia, in practice, has a perverse need or incentive to allow representation by lawyers and paid agents with expertise in unfair dismissal cases, effectively to compensate for the deficiencies of Section 386.


14. The Australian Government and Fair Work Australia should acknowledge that Section 386's complexity and lack of clarity has the potential to "do a person's head in", and in some cases require a party to spend in the order of 10 times longer carrying out research, and preparing submissions and arguments, than would be necessary if Section 386 was fully codified and clear, in a manner that could be expected to have significant adverse impact upon the health and mental health of parties in unfair dismissal cases and their families as well.


15. If Fair Work Australia handles unfair dismissal cases in a manner demanding significant levels of legal research and understanding, then that is one thing for public sector employer respondents represented by lawyers paid for by the taxpayer, say, who can work on cases without having to sacrifice personal or family time and energies, but quite another thing for self-represented applicants who need to prepare submissions and arguments in their own time, on top of family and work or job seeking pressures, by deadlines that may not be at all easy to meet, in the weeks or months after ceasing employment in what are likely to have been disputed circumstances that leave applicants unemployed, insecure about their employment future, and generally drained, distressed, stressed, depressed, exhausted and so on.


16. If the Section 386 definitions of "dismissed" and the associated exclusions and counter-exclusions were fully clarified through fully codified definitions, unfair dismissal cases would, all else being equal, be vastly less complex, and able to be dealt with vastly more efficiently, than is currently the case, and lawyers wouldn't be needed to represent parties and assist Fair Work Australia to overcome such complexity.


17. Lawyers and paid agents may have the potential to enhance the efficiency of some unfair dismissal cases, but not if such cases are handled in a manner which leaves too many points of uncertainty open to adversarial debate over interpretation. Clear definitions, as called for in this request, would squeeze out all doubt about interpretations of Section 386, and overcome the need for complex, inefficient and adversarial legal debates, and for lawyers and paid agents.


^ Further Views Indicating that Section 386 is Too unclear or Too Difficult for Non-lawyers to Deal With


18. The February 2009 Report of the Senate Standing Committee on Education, Employment and Workplace Relations Inquiry on the Fair Work Bill 2008 [Provisions] includes the claim (by Ms James, Committee Hansard, 11 December 2008, p. 39), in relation to the unfair dismissal provisions of the Workplace Relations Act 1996 in operation at the time in late 2008, that "the dismissal provisions in the current [Workplace Relations] act 'are among the most difficult to navigate'", but the Workplace Relations Act 1996 at least contained the Note 1, as in paragraph 8 above, to clarify definitions to some extent.


19. Subsection 386(3) is especially challenging even for very experienced workplace relations and workplace law experts, as was the case with the corresponding subsection 638(3) of the ^ Workplace Relations Act 1996. In describing subsection 638(3) of the Workplace Relations Act, or an earlier pre-WorkChoices version with differently numbered sections and associated regulations, Professors Breen Creighton and Andrew Stewart, for example, in the 2000 third edition of their book titled Labour Law: an Introduction, state, on page 319, that it is "unclear how a worker could ever establish that they have been put on a fixed term merely for avoidance purposes, given the many plausible reasons for such an arrangement". Professors Creighton and Stewart further state that "the injustice of this exclusion has been significantly mitigated by decisions to the effect that a contract of fixed duration which can also be terminated on notice at any time is not a contract "for a specified period of time"; and "This prevents employers having the best of both worlds: putting workers on contracts whose fixed period precludes an unfair dismissal claim and reserving a right to end the contract at any time by giving notice".


20. Whilst subsections 386(2) and 386(3) might be extremely challenging, as above, they at least provide some level of codification to guide parties in unfair dismissal cases. If outer limit contracts remain outside the definition of a contract of employment for a specified period of time, then case law is relied upon to provide guidance on the exclusions and counter-exclusions corresponding to subsections 386(2) and 386(3) for contracts that do fall within the definition of a contract of employment for a specified period of time. But the case law on outer limit contracts is thin and fails to provide clear definitions of the exclusions and counter-exclusions corresponding to subsections 386(2) and 386(3), let alone the associated proof burdens and standards of proof required. So if unfair dismissal cases involving arguments about subsections 386(2) and 386(3) are challenging, then cases involving arguments about the exclusions and counter-exclusions applying to outer limit contracts – if deemed outside the scope of s386(2) – are likely to be even more challenging, to the point of being prohibitively difficult, legally technical and so on, again, hence rendering such cases for all practical purposes inaccessible and unfair for the non-lawyers presumed to be parties in Fair Work Australia unfair dismissal cases, and grossly in conflict with Fair Work Australia's duties, as in paragraph 3 above, to handle unfair dismissal cases in a manner that is "quick, flexible and informal" (as required by s381), "fair and just", "open and transparent" and absent of "unnecessary technicalities" (s577), and generally absent of legal representatives or other paid agents (s596).


Mark Drummond

5 November 2010

^ Key Statements to Make at 15 July 2010 Hearing


I'd like to begin by submitting that the task all of us face in this matter here is made very challenging by the fact that the Fair Work Act unfair dismissal provisions are especially challenging, and perhaps prohibitively challenging in view of some genuine contradictions in the Act, where I believe the most significant and problematic contradiction of relevance to this current matter is the contradiction between, on the one hand, Section 596 – which makes it very clear that the Fair Work Australia unfair dismissal process is designed and intended for parties generally presumed to be non-lawyers, and, on the other hand, the very challenging Section 386 which is only partly codified, and hence heavily reliant upon case decisions which I'm sure most non-lawyers, at least, would find not only challenging, but unreasonably and prohibitively challenging. I believe these contradictions can to a large extent be overcome in practice, however, but perhaps only if (1) questions of jurisdiction and substantive merits are considered jointly, and (2) Fair Work Australia deals with unfair dismissal claims in a genuinely inquisitorial manner as clearly required under Section 397, and clearly intended under the Fair Work Act generally. I accept that it is completely sensible and appropriate to have jurisdictional questions considered in advance of merits to resolve generally straightforward black and white questions based on Sections 382-4 and 394-6 of the Fair Work Act, but I struggle to see how it could ever be appropriate to consider Section 386 jurisdictional questions in advance of a consideration of contested facts as required in any event by Section 397, in view of the extreme likelihood that sound assessments against Sections 386 and 387 alike can only generally be made, in practice, after contested facts are clarified under a Section 397 factual inquiry.


Further to my contention, as above, that Section 386 questions should never in general be considered in advance of a dedicated Section 397 factual inquiry, a situation can arise, when an employer is granted legal representation, let alone a two-tiered legal representation team involving both a solicitor and barrister, and possibly three-tiered legal representation in case U2009/12914 and now case U2010/3817 involving the ACT Government solicitor and a private law firm barrister (so there's (1) the ACT government, (2) a solicitor for the ACT Government, and (3) the barrister obtained by the ACT Government Solicitor), where I believe such lawyer representation arrangements are especially contrary to the express wording and clear intent of Sections 381 and 596, for several reasons. Firstly, the speed and efficiency of the process is impaired, in breach of Sections 381 and 596 in general, and subsections 381(b)(i) and 596(2)(a) in particular, when lawyers become involved in an unfair dismissal matter, because such lawyers are only able to provide third of fourth hand accounts of potentially or actually relevant facts in written submissions and hearings or conferences, such that there is a perverse incentive to have the Fair Work Australia process skewed or distorted in favour of consideration of jurisdictional questions - which are generally highly complex and legalistic in their nature – and against contested factual considerations about actions by staff of the employer within disputed employment situations of which they only have second, third or fourth hand accounts, where the actions of such staff will generally be challenged by an unfair dismissal applicant, and if staff of the employer really have done something wrong in connection with the unfair dismissal claim, such staff may also have much to conceal, and lawyers in such circumstances can tend to effectively then act as private solicitors for staff whose actions are brought into question by a former employee making an unfair dismissal claim, with a lawyer's natural and indeed professional inclination to protect their client in ways that will typically block the release of facts and truths that have the potential to assist the employee applicant and Fair Work Australia in its inquiry process in a manner which is both extremely unfair to the employee applicant, and an added burden for Fair Work Australia, quite grossly in breach of the express wording and clear intent of Sections 381, 397 and 596, at least, of the Fair Work Act. Challenging jurisdiction largely on the basis of Section 386 is an inherently adversarial tactic which could always have the potential to circumvent (or "short circuit" or "squeeze out") consideration of highly relevant facts, inherently contrary to the express intent of Sections 381, 397 and 596.


My main intention in saying what I just said then is to try and take a bit of pressure off all of us here today.


...


Up front or early on when given the chance:


I feel I must begin with a brief statement on the Fair Work Act 2009 in a broad sense, given that this legislation lays at the foundation of the case subject to appeal hear.


Having struggled with relevant sections of the Fair Work Act since October last year (2009), as time has passed I've become increasingly convinced that there are major problems with the Act in terms of contradictions in both theory and practice, perhaps especially in relation to:

firstly, questions about whether complex case law arguments are admissible and within Fair Work Australia's jurisdiction;

secondly, questions about the involvement of lawyers in Fair Work Australia processes generally and unfair dismissal cases in particular – especially if the lawyers raise case law or other complex, technical and narrow legal arguments that can potentially or actually reduce access to unfair dismissal remedies; and

thirdly, the specific provisions of Section 386.


That said, it is equally clear, I submit, that the Fair Work Act 2009 is largely written in good plain English, and is hence able to be understood by non-lawyers such that non-lawyers should be able to operate with it quite well without the need for lawyer assistance, though with Section 386 that is centrally relevant to this current matter the complexity and doubts are highly problematic for specific reasons I've attempted to set out in my form F7 and which I'll come back to very soon.


I further submit that there is abundant evidence of the legislative objectives and intent of the Fair Work Act 2009 in the form of both the clear wording of the Act itself, as I'll further explain very soon, and in numerous other items of documentary evidence in the form of the Explanatory Memorandum for the Fair Work Bill 2008, the Forward with Fairness Implementation Plan dated 2007, fact and information sheets produced by Fair Work Australia and the Department of Education, Employment and Workplace Relations (DEEWR), and various speeches and media statements by former Prime Minister Rudd and current Prime Minister Gillard in her previous role as Minister for Workplace Relations.


Section 3 of the Fair Work Act states that "The object of this Act", among other things, "is to ... [protect] against unfair treatment and discrimination [and provide] accessible and effective procedures to resolve grievances and disputes", and I stress the word "accessible" here in terms of the clearly stated intention here that Fair Work Australia has a duty to ensure that its unfair dismissal processes are accessible to parties who in general won't be lawyers, let alone workplace law experts at a time in the early stages of the operation of a statute such that it can be argued that nobody can yet be considered an expert on this new legislation, and nobody can provide more than speculative advice.


Section 381 states that "The object" of Part 3-2 on Unfair Dismissal, among three listed objectives, "is to ... [protect] against unfair treatment and discrimination [and provide] accessible and effective procedures to resolve grievances and disputes", and to "ensure that a "fair go all round" is accorded to both the employer and employee concerned", and I again stress the word "accessible" here.


Section 397, on Matters involving contested facts, states that "FWA must conduct a conference or hold a hearing in relation to a matter arising under this Part if, and to the extent that, the matter involves facts the existence of which is in dispute", and I emphasise the word "must" here in the context that the legislation is quite clear that this factual clarification stage is a compulsory part of this process, and that no amount of technical legal argument or case law should be allowed to circumvent the clarification of disputed facts as has occurred to a rather extreme extent, I submit, in my case here, in ways I'll soon specify.


Sub-section 398(4) states, in relation to unfair dismissal cases, that:

"FWA must take into account the wishes of the parties to the matter as to the way in which FWA:

(a) considers the application; and

(b) informs itself in relation to the application."


Section 399 clearly provides FWA with discretionary powers, and I can understand and respect these whilst also feeling that there are tensions within Section 399 in relation to what my rights are as a party in an FWA unfair dismissal matter, for example, in terms of my rights to have my wishes followed, and the extent to which I'm empowered in this whole process. But I'll put these concerns to one side for now.


Section 577, on the Performance of functions etc. by FWA, states that:

"FWA must perform its functions and exercise its powers in a manner that:

(a) is fair and just; and

(b) is quick, informal and avoids unnecessary technicalities; and

(c) is open and transparent; and

(d) promotes harmonious and cooperative workplace relations."


Section 578, on Matters FWA must take into account in performing functions etc., states that:

In performing functions or exercising powers, in relation to a matter, under a part of this Act (including this Part), FWA must take into account:

(a) the objects of this Act, and any objects of the part of this Act; and

(b) equity, good conscience and the merits of the matter; ...


Section 596, on Representation by lawyers and paid agents, states.

In subsection (1), that:

"a person may be represented in a matter before FWA (including by making an application or submission to FWA on behalf of the person) by a lawyer or paid agent only with the permission of FWA".

And in subsection (2):

"FWA may grant permission for a person to be represented by a lawyer or paid agent in a matter before FWA 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.


And in terms of relevance to the matter here and my current submissions, I wish to emphasise the phrases "only with the permission of FWA" and "only if ... it would enable the matter to be dealt with more efficiently, taking into account the complexity of the matter".


There were some restrictions on the rights of parties to be assisted by lawyers and paid agents under the workplace Relations Act 1996, as set out in Section 100, but these restrictions were significantly narrower than they are with the Fair Work Act 2009.


Taken together, the sections I've just read out indicate that FWA is clearly not permitted to allow legal representation in which lawyers produce complex or narrow or technical arguments based on case law, and has a particular duty to ensure that arguments based on case law are never allowed to circumvent assessments of facts as required under Section 397.


I further submit that the sections referred to here strongly suggest that case law in its entirely is probably not admissible nor within FWA's jurisdiction in relation to unfair dismissal matters, except perhaps in highly restricted and controlled circumstances, and I note that Fair Work Australia fact sheets explain that FWA and the Fair Work Ombudsman have information providing and educating roles designed to clearly explain rights and obligations and generally assist users of Fair Work Australia processes, and I support this commitment to education and explanation, and would accept that, in unfair dismissal matters before it, FWA should be permitted and indeed required to translate and generally explain binding or complex case law to parties in clear and unambiguous way that gives them a fair and reasonable time to digest such information and respond to it in submissions. Again there are tensions and complications here in that the Fair Work Act 2009 is only just into its second year of operation, such that the question of binding decisions is itself extremely challenging to the point that there is probably no lawyer in the country and no book or scholarly journal article in the country able to provide sound legal advice. In short, in these early stages of operation of the Fair Work Act, directions to seek legal advice are effectively equivalent to sending parties on a wild goose chase. The legal profession may not be happy that they have been shut out of FWA processes to the extent they have been, but the legislation as I've just quoted it is clear, and I believe it is in the public interest to emphasise this and ensure that the FWA unfair dismissal jurisdiction is not hijacked by lawyers and legal technicality at the expense of the common sense justice implied in the title "Fair Work" that could be expected to be achieved much more often if Section 386 jurisdiction questions are considered after the factual inquiry required by Section 397.


A very different reality applied in my case here in which lawyers were allowed to be involved, and the matter became dominated by highly technical legal arguments about case law and very narrow cherry-picked contract law interpretations which were allowed to circumvent a proper assessment of relevant facts in dispute as required by Section 397.


I submit, therefore, that Fair Work Australia is not permitted to direct parties to obtain legal advice in unfair dismissal cases, because such directions clearly breach or at least contradict sections of the Act as above. I submit that if Fair Work Australia considers matters complex enough to require legal advice, then Fair Work Australia itself is legally obliged to provide that legal advice to parties in the interests of procedural fairness and efficiency and so on as required by Sections 577 and 596, and I'd add that such advice would merely amount to a cultural shift to the more inquisitorial and less adversarial approach that again is specifically intended in the legislation (cite source). I don't need to be a lawyer to realise that advising parties to seek legal advice is more likely than not to encourage adversarialism and an emphasis on complex and technical case law arguments.


And I'd like to emphasise here the compulsory requirement to handle matters in a manner that is "fair and just", and that is "quick, informal and avoids unnecessary technicalities


to establish procedures for dealing with unfair dismissal that:

(i) are quick, flexible and informal; and

(ii) address the needs of employers and employees;





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