[2011] FWA 1400 |
|
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Terence Michael Cooper
v
Brisbane Bus Lines Pty Ltd
(U2010/12410)
COMMISSIONER SIMPSON |
BRISBANE, 3 MARCH 2011 |
[1] This matter involves an objection pursuant to section 596 of the fair Work Act 2009 (“the Act”) from Brisbane Bus Lines Pty Ltd (“the Respondent”) to Mr Terrance Cooper (“the Applicant”) being represented by a lawyer or paid agent for the purposes of determining an application for an unfair dismissal remedy pursuant to s.394.
[2] The s.394 application was listed for mention on Monday 21 February 2011 for the purpose of programming the hearing. During the mention the respondent raised objections to the Mr Chris Hunt representing Mr Cooper during the conduct of the hearing.
[3] Hearing dates were set for Wednesday 9 March and Thursday 10 March 2011. I requested that the parties provide submissions on the objection pursuant to s.596 by Friday 25 February and I would determine the matter based on those submissions.
[4] Both the applicant and respondent provided written submission as requested. The relevant legislative provision on which the respondent’s objection is based is 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 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.
(3) FWA’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 Fair Work (Registered Organisations) Act 2009; or
(iii) a peak council; or
(iv) a bargaining representative;
that is representing the person; or
(c) is a bargaining representative.
Respondents Submission
[5] In brief summary the respondent submits it would be prejudicial to the respondent to allow Mr Chris Hunt to represent, act on behalf of or advise the applicant. The respondent argues that Mr Hunt has an extensive career in law and the legal justice system. Mr Hunt holds a law degree and has held senior positions in governmental roles utilising expertise in the law. The respondent concedes Mr Hunt may not have practiced law in a courtroom but has extensive experience in the law.
[6] The respondent in its submission then set out in some detail why it believed Fair Work Australia should not grant permission to Mr Hunt to represent Mr Cooper by putting argument addressing the criteria in s.596(2). The respondent made reference to a decision of Commissioner Harrison in Rodney James Rogers v Hunter Valley Earthmoving Company Pty Ltd [PR989781] 1 where a union successfully opposed an application under s.596 by a firm of lawyers to represent an employer.
[7] The respondent’s representative Mr Jason Fiippini is not an expert in industrial relations nor has he appeared in an industrial tribunal. While Mr Filipini is employed in a human resources role for the respondent, he has no formal training in the area.
[8] The applicant has made claims to have dyslexia, and that he cannot read or write. The respondent refutes the two later claims based on what the respondent claims Mr Cooper has been observed to be capable of as a former employee. The respondent requested that if any weight is to be given to the applicants claim he is dyslexic that evidence should be provided to prove the claim.
Applicants Submission
[9] The applicant’s submission was prepared by Mr Hunt who is the applicant’s brother -in law. In brief the applicant’s submission sets out an understanding of the grounds of the respondent’s objection and the statutory context of the objection. The applicant’s submission stated that the applicant, who is sixty years of age has had a lifelong difficulty with reading and writing. The submission also explains that the applicant has had to adopt measures throughout his life to manage this problem.
[10] Importantly the applicant has submitted that s. 596 has no direct application in this case as Mr Hunt does not fall within the definition of a ‘lawyer’ as defined in s.12 of the Act. That definition is as follows;
Lawyer means a person who is admitted to the legal profession by a Supreme Court of a State or Territory.
[11] Mr Hunt has advised through the written submission filed that he is not now, and never has been a practicing lawyer, and has never been admitted as a lawyer. He has never appeared before any court or tribunal, as an advocate of any kind, or as part of an advocacy team. Mr Hunt states that he has no practical industrial relations experience whatsoever.
[12] Mr Hunt lodged a Form 53 application however he was unsure whether it was appropriate for him to do so. It is my understanding that Mr Hunt is receiving no payment from Mr Cooper and the submission states that he intends to assist him as a friend and a relative.
CONSIDERATION
[13] It is clear to me s.596 has no direct application to the circumstances in this matter. Mr Hunt is neither a lawyer as defined in the Act or a paid agent.
[14] I have had regard to all of the material that was provided in both the submissions filed by the parties and I am of the view that even if Mr Hunt was a lawyer as defined in the legislation I would be inclined to grant him permission to represent the applicant on the grounds set out in s.596(2).
[15] The respondent has made the argument that it will be self represented and that the manager representing the respondent Mr Jason Filippini has no legal experience or expertise in industrial relations. Having said that, the respondent is a reasonably large employer with over 100 employees and has internal human resource functions within its management structure.
[16] It is my impression that the manner in which the company has been representing itself to this point, including the quality of the submission presented for the purposes of its objection pursuant to s.596 is of a good standard. I believe Mr Filippini is capable of effectively representing the respondent.
[17] There does not appear to be a major dispute regarding the facts central to the dispute, however the applicant is seeking to challenge the respondent’s interpretation of the facts including procedural fairness issues. The respondent is calling a large number of witnesses and has foreshadowed lengthy cross examination of the applicant.
[18] I agree with the submission of the applicant that it will hinder the efficient running of the matter if the applicant is consistently seeking assistance from Mr Hunt or his wife Ms Cooper. For those reasons I intend to allow Mr Hunt to assist the applicant in conducting his case, including for the purposes of examination in chief, cross examination of witnesses for the respondent and in the making of submissions.
[19] I do so for the same reasons as are contemplated in s.596(2)(a),(b) and (c) as if Mr Hunt had fallen within the meaning of that section of the Act although, as I have already stated he does not.
COMMISSIONER
1 Rodney James Rogers v Hunter Valley Earthmoving Company Pty Ltd PR989781
Printed by authority of the Commonwealth Government Printer
<Price code A, PR507281>