[2010] FWA 912 |
|
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
DEPUTY PRESIDENT LEARY |
HOBART, 9 FEBRUARY 2010 |
[1] This is an application pursuant to s.394 of the Fair Work Act (the Act) by Adrian Wayne Venn (the applicant) alleging that his termination of employment by the Salvation Army T/A Barrington Lodge (the respondent) was unfair.
[2] The applicant has argued that the respondent should not be legally represented.
[3] Both parties were directed to provide written submissions in respect to the application.
[4] The applicant submits “I question why the respondent has been allowed to submit a submission prepared by Audrey Mills [its legal representative] who is not an employee of the Salvation Army.”
[5] It is normal practice for the person seeking the permission, or leave, of a Tribunal or Court to represent a party, to present submissions in support of that permission, or leave, being granted.
[6] The applicant submitted that s.596 of the Act established criteria for the Tribunal to take into account when considering whether to exercise its discretion to permit legal representations.
[7] S.596 provides:
“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 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.
(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.”
[8] The applicant submitted that the matter for determination was not a complex matter and that the respondent could be represented by its Human Resources Officer Anne Olding who, it was said, is a ‘HR professional’. The applicant claims that the respondent is “using legal representation to complicate the argument and justify her actions.”
[9] Further it was submitted that the applicant is not a HR professional and does not have legal representation and claims it would be “discriminatory for the respondent to be allowed legal representation as the applicant is not in a financial position to seek legal representation.”
[10] The applicant also submitted that “Again Audrey Mills [the respondent’s legal representative] makes unsubstantiated assumptions that I am being represented by Gavin Horton” and further “I have already stated in my submission that I am not in a financial position to be able to be represented by a lawyer in these proceedings.”
[11] He referred to the decision of Commissioner Harrison in Rodney James Rodgers v Hunter Valley Earthmoving Company Pty Ltd (2009) FWA 572 where permission was not granted to the Company’s legal representative.
[12] It was submitted by the respondent that Anne Olding does not feel she could properly represent the respondent as the relationship between the applicant and the respondent, including Ms Olding, has irrevocably broken down. So much so that the Magistrate’s Court has issued an Interim Restraint Order [No 92492/2009] against the applicant which states that he must not:
“…directly or indirectly threaten, harass, abuse or assault Anne Olding;
approach Anne Olding directly or indirectly including by telephone, email, facsimile or letter;
enter the premises of Barrington Lodge;
or go within 50 metres of the boundary of the premises at Barrington Lodge.”
[13] The respondent noted that “at a conciliation conference in the Magistrate’s Court the applicant refused to be present in the same room with Ms Olding such that conciliation had to be conducted with the parties in separate rooms.”
[14] I note however that the applicant did not deny that he had requested separate rooms but said he did so as he did not wish to be in the same room as another named employee of the respondent and was unaware Ms Olding would be present.
[15] It was submitted that the respondent does not have a person in Tasmania with the necessary skill or experience to defend the application before the tribunal as the facts in the matter are complex, they are disputed and have occurred over a long period of time.
Considerations:
[16] The Act requires that consideration be given to whether to permit legal representation would “enable the matter to be dealt with more efficiently, taking into account the complexity of the matter”.
[17] It is obvious from the submissions provided in respect to whether to permit legal representation that this will be a complex matter as many of the issues raised are disputed by one or other of the parties. It seems that the parties are also in dispute as to what matters are relevant to the substantive application.
[18] The respondent submitted that it has no in-house lawyers or other senior human resource staff in Tasmania able to deal with the matter before the Tribunal. Further that its legal representative has represented it in a number of jurisdictions in matters involving the applicant so is therefore aware of the issues likely to be addressed.
[19] The applicant is of the view that Ms Olding, the respondent’s “HR professional” would be capable of presenting the matter but this submission seems to ignore the impact of the Interim Restraint Order which will create certain difficulties in procedure regardless of whether Ms Olding presents the case or not. It has also been said that Ms Olding will be a witness for the respondent in the hearing of the substantive application.
[20] The Interim Restraint Order is relevant and to ensure compliance the applicant requested the Tribunal to provide the respondent with copies of his submissions as he states that the order does not allow him contact with Ms Olding in any form.
[21] The applicant in response attached a Statutory Declaration from Gavin John Horton wherein he (Mr Horton) says that the applicant “had asked me to represent him.” He also notes that “I have been a practicing HR professional for many years…..” and further “In not recognising me as Adrian’s representative Anne Olding and Major Begent have both contravened the policies and procedures set out in the staff handbook…….”
[22] The applicant is able to be represented by Mr Horton if he chooses and the respondent should recognise that representation. Albeit Mr Horton’s statutory declaration seems to be at odds with the applicant’s submission that “Again Audrey Mills [the respondent’s legal representative] makes unsubstantiated assumptions that I am being represented by Gavin Horton” which seems to indicate that the applicant is saying that Mr Horton is not representing him.
Findings:
[23] I propose to exercise my discretion and permit legal representation. I am of the view that such representation will assist in the matter being dealt with more efficiently.
[24] This may well be a complex matter as the applicant did not wish to participate in a conciliation conference and wished to proceed directly to hearing, accordingly the hearing will be the first time any issues related to the substantive claim will be addressed. The submissions presented to date identify many disputed facts and a number of matters raised which will require determination as to relevance. Also the Interim Restraint Order, and the need for the applicant to comply with its requirements, cannot be ignored.
[25] It is fair to permit legal representation as I am satisfied that the respondent does not have a person able to present its case, and even if Ms Olding is capable, as claimed by the applicant, it would be difficult for her to be both advocate and witness.
[26] The respondent has no person in Tasmania with experience in workplace relations advocacy whereas the applicant is represented by a very experienced HR professional experienced in advocacy who has represented the applicant in other matters including an application before the Tasmanian Industrial Commission. I rely on the Statutory Declaration of Mr Horton that the applicant “had asked me to represent him” and note that the applicant’s submissions have been forwarded via Mr Horton’s email address.
[27] The decision of Commissioner Harrison, relied on by the applicant, was determined in circumstances very different to this application and where the Commissioner was of the view that the matter was not of a complex nature.
[28] In all of the circumstances I am of the view that it is appropriate to grant permission for legal representation. That permission will be granted to both parties if the applicant decides that he wishes to seek legal representation.
[29] I provide the following Directions:
The applicant is directed to file with Fair Work Australia, marked attention Sarscha Wardlaw and serve on the respondent, comprehensive written submissions, any witness statements, copies of authorities and any other documentary material he intends to rely on in support of his application by no later than noon on Monday 22 February, 2010.
The respondent is directed to file with Fair Work Australia, marked attention Sarscha Wardlaw and serve on the applicant, comprehensive written submissions, any witness statements, copies of authorities and any other documentary material the respondent intends to rely on in response to the applicant’s submission, by no later than noon on Monday 8 March, 2010
The matter will be listed for final submissions and the examination of any witness evidence in Hobart on Monday 22 March, 2010, commencing at 10.00am.
[30] The parties are requested to advise the tribunal whether the Interim Restraint Order against the applicant will impact on the manner in which the hearing can proceed.
DEPUTY PRESIDENT
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