In this week’s blog we look at a recent employment law case that was heard by a Full Bench of the Fair Work Commission (FWC) in December 2023. The Full Bench consisted of FWC President Justice Hatcher, Deputy President Wright and Commissioner Crawford. The central issue in this case was determining the validity of a notice of discontinuance filed in a general protections matter, where the employee was being represented by a paid agent.
What is a notice of discontinuance?
A notice of discontinuance also known as Form F50 is used by an applicant (which is typically the employee) in proceedings to inform the FWC that they want to stop their application or withdraw their claim. These are typically filed after the parties have come to an agreement and the matter has been settled.
What is a paid agent?
A paid agent in relation to a matter before the FWC, means an agent who charges or receives a fee to represent a person in the matter other than a lawyer. Section 596 of the Fair Work Act provides that a person may be represented by a paid agent with the permission of the FWC.
Paid agents have recently drawn criticism from the FWC for their practices (as discussed further below in this week’s case) which has led to the establishment of the Paid Agent Working Group.
On 7 September 2023, Mr Samuel Howell (Mr Howell) made an application in the FWC alleging that he was dismissed by his employer, Elite Elevators Corporation Pty Ltd in contravention of the general protections provision of the Fair Work Act 2009 (Cth). The application was filed by ‘Employee Dismissals’, which identified itself in its covering email as Mr Howell’s paid agent, and the application was signed by Ms Belinda Solomon as ‘Paid Agent for and on behalf of Employee Dismissals’. Employee Dismissals is a paid agent that represented Mr Howell’s case on a “no win no fee” basis.
The matter was then listed for conference before Commissioner Allison on 6 October 2023, where Mr Howell attended and was represented by Ms Pareshni Pillay of Employee Dismissals and the employer was legally represented. During the conference, the parties ultimately reached a settlement agreement and whilst the conference was not recorded, the Commissioner went ‘on record’ at the conclusion of the conference and read out the agreed terms of settlement. The Commissioner’s chambers then emailed the parties the agreed terms of settlement in writing for signature shortly thereafter. The terms of the settlement agreement where the standard set of terms issued by the FWC following proceedings and included that:
- the employer was to pay the settlement sum into the Mr Howell’s nominated bank account within 7 days of both parties signing the agreement;
- The employee’s termination would be treated as a resignation and the employer would provide a statement of service;
- Once the employee had received both the payment and the statement of service the employee would discontinue their application; and
- The matter would be closed by the FWC once both parties had signed the agreement.
Mr Howell’s Complaint
Following the conference, on 20 October 2023, Mr Howell emailed the Commissioner’s chambers inquiring how he was to sign the terms of settlement to which Chambers responded that they had already received a signed terms of settlement however his name was missing from beneath the signature and it had not been witnessed which was eventually corrected by Mr Howell.
On 13 November 2023, Mr Howell wrote to the Commissioner’s chambers again stating that he hadn’t received the statement of service or any of the agreed financial compensation. Following this Mr Howell also left a voicemail message with the Commissioner’s chambers which stated that he hasn’t heard from anyone (including “his own legal people”). The following day the Commissioner’s chambers forwarded this communication to the employer’s representative and enquired about the employer’s compliance with the terms of settlement.
Shortly after receiving this email, Mr Howell contacted the chambers to inform them that he had just received an invoice to pay Employee Dismissals $4,490 for representing him, less the money paid by the employer under the settlement agreement which had already been paid directly to Employee Dismissals. In this email Mr Howell complained about receiving poor representation throughout the matter and that his representative had not communicated with him following the conference.
The employer’s legal representative replied confirming that signed agreements had been exchanged and the settlement payment had been made to the employee’s nominated bank account in accordance with an “irrevocable authority to pay” produced by Employee Dismissals to the employer.
On 17 November 2023 Employee Dismissals filed a Form F50 notice of discontinuance with the FWC for this matter indicating that Mr Howell, as the employee, wholly discontinued the matter as part of the settlement agreement. This form was signed by Ms Pillay on behalf of the employee and Employee Dismissals. In response to the filing of the notice of discontinuance Mr Howell expressed that he was “horrified by this outcome” and that he will be submitting a formal complaint against Employee Dismissals.
Over the span of several emails and calls, Mr Howell made several further complaints to the Commissioner’s chambers before the matter was ultimately escalated to the President of the FWC. In further communication President Hatcher enquired whether Mr Howell had given instructions for his representative to discontinue the matter, to which he confirmed that no such instructions had been given which led to the matter being relisted for a hearing.
Employee Dismissal’s case
At the hearing it was Employee Dismissal’s argument that
- they had authority to file the notice of discontinuance under the terms of settlement as both parties had complied with their obligations (i.e. the employer had made payment of the settlement sum);
- they had irrevocable authority from Mr Howell pursuant to an signed “irrevocable authority” document to direct the payment to be made into Employee Dismissal’s trust account; and
- that Mr Howell should have understood that the terms of the agreement meant that payment would be made into their trust account following the conference.
Following the hearing President Hatcher required Employee Dismissals to produce all documents relating to this matter to the FWC, to which Employee Dismissals produced amongst other documents the ‘terms of engagement’ and ‘irrevocable authority’.
In finding that the matter had not been validly discontinued, the Full Bench examined the situations in which a proceedings can be discontinued in the FWC. The FWC noted that where an employee is represented by a lawyer in a proceeding, the lawyer can discontinue the proceedings on the basis of instructions or authorisation from the employee as a client.
The conduct of lawyers in this respect is regulated by the statutory requirements and professional rules applying to the legal profession such as acting in the best interest of the client, providing clear and timely advice to assist a client understand legal issues and to follow a client’s lawful, proper and competent instructions. Should a lawyer breach these rules they would face disciplinary action from authorities that regulate the legal profession.
There is no regulatory scheme governing the qualifications, conduct, ethics or financial dealings of such paid agents However, the Commission has an overriding obligation to perform its functions and exercise its powers in a manner which is fair, just, open and transparent.
The FWC therefore proceeded on the basis that a paid agent may only file a notice of discontinuance on behalf of an employee that they have permission to represent if they have been expressly instructed or authorised by the employee to do so, and such instruction or authorisation has been given after the provision of appropriate advice by the paid agent to the employee to mirror the obligation placed on lawyers.
In this matter, no instructions were given by Mr Howell to discontinue the proceedings, nor did Employee Dismissals provide Mr Howell with any advice regarding the settlement. Ultimately the Full Bench found that the notice of discontinuance was void, the matter had never been discontinued by Mr Howell and that the matter was to be listed for a further conference before President Hatcher.
In this decision the Full Bench noted that the employer was required to attend the hearing, and would have likely incurred legal costs because of an unreasonable act or omission of the paid agent by filing an unauthorised and invalid notice of discontinuance and invited the employer to make an application to retrieve their legal costs from Employee Dismissals under section 376(2)(b) of the Fair Work Act.
Recommendation of President Hatcher
Following the further conference President Hatcher made a verbal recommendation on how to resolve the matter which was ultimately rejected by Employee Dismissals. As the verbal recommendation was rejected, President Hatcher issued a formal recommendation (available here) to the parties which explains the reasoning behind the recommendation.
In this recommendation, President Hatcher discussed the covering email sent to Mr Howell after he made contact with Employee Dismissals, the terms of engagement and the irrevocable authority. In relation to these three documents President Hatcher noted that:
- The email contains several misleading and deceptive claims;
- The email placed a tight deadline on Mr Howell to agree to the email and its terms regardless of the statutory deadlines it refers to or else they would not represent his case;
- The professional fee (of $4,490 plus GST) which Mr Howell would be required to pay Employee Dismissals upon success is said to be subject to a “no win no fee guarantee” however this is never explained to Mr Howell;
- The terms of engagement are a six page document clearly drafted by a lawyer which would be difficult to understand as a layperson; and
- The provisions around the no win no fee guarantee are complex and a win could include Mr Howell not receiving any money, which was not explained to Mr Howell;
The recommendation noted that Employee Dismissals would have been aware that Mr Howell had not read or understood these terms and conditions, and it was unconscionable for them to rely on them given as Mr Howell had confirmed his agreement to the email in under 2 minutes, signed the terms of engagement in 64 seconds and signed the irrevocable authority in 21 seconds.
During the second conference the employer provided President Hatcher with an email which Employee Dismissals had sent prior to Mr Howell signing the terms of settlement informing the employer that the funds are to be paid directly to their trust account. This email was sent without informing Mr Howell, or copying him into the email.
It was President Hatcher’s recommendation that Employee Dismissals repay the settlement money to the employer, the employer then pay Mr Howell directly and that Mr Howell discontinue the matter. The recommendation does make further comment about whether Employee Dismissal would be entitled to then recover their fees from Mr Howell.
In concluding the recommendation President Hatcher noted that Employee Dismissals has engaged in misleading and unethical conduct and listed 30 other cases where their behaviour has been problematic.
Lessons for employers
Defending a general protections or unfair dismissal application can be a stressful and time costly exercise at the best of times. This can be amplified if issues arise and proper process is not followed which may result in further conferences and hearings being necessary. Although in the above matter, the FWC invited the employer to make a costs application against Employee Dismissals, the employer was still required to expend significant time and effort to attend further proceedings after they had thought the matter to be settled. We also note that there is no guarantee that the costs application would cover all of the costs expended during the process.
Despite acting in good faith in these proceedings and making payment to the employee’s representative, President Hatcher noted that the employer had not complied with the obligations in the settlement agreement to make payment to the employee’s nominated bank account, and that this may have amounted to a repudiation of the settlement agreement. If there was a repudiation of the settlement agreement, Mr Howell would have been entitled to proceed with his claim which would have likely involved significant costs for the employer.
As previously discussed there is no regulatory scheme or stringent rules in place that require a paid agent to act in a client’s best interest or govern their financial dealings. As seen in the case above, they may also act outside their authority and not provide advice or communication with their clients. It is important that if you have received a general protections claim or an unfair dismissal claim from an employee who is being represented by a paid agent, that you seek advice from those with experience in dealing with paid agents to ensure that no corners are cut and the matter is resolved in a timely and cost effective manner.
Need further help?
If you require assistance in responding to a general protections application or an unfair dismissal application please contact EI Legal at: email@example.com