[2013] FWC 1320 |
FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Daniel Bowley
v
Trimatic Management Services Pty Ltd T/A TSA Telco Group
(U2012/16616)
COMMISSIONER STEEL |
ADELAIDE, 1 MARCH 2013 |
Application for representation by lawyer or paid agent.
[1] This matter is programmed for determination on 16 and 17 April 2013. The applicant, Mr Bowley, is seeking a review of his dismissal by the respondent under s.394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy.
[2] The parties each had legal representation at the conciliation conference held on 11 January 2013. That conciliation was unsuccessful in achieving a settlement.
[3] The applicant’s legal representative advised they ceased to act for the applicant on 5 February 2013, prior o the directions conference held on that date.
[4] Within the directions conference, the applicant advised he was to be self-represented in the matter and opposes legal representation of the respondent in the determination. The respondent seeks to continue its legal representation. The Commission determined that the issue of permission under s.596 of the Act for such legal representation of the respondent would be dealt with by way of the respondent providing written submissions to the applicant and the Commission. The applicant has not provided any further written submission for the Commission’s consideration and hence the Commission considers his opposition shall stand upon the legislative provision as to the discretion of the Commission to allow such legal representation to parties within these matters.
[5] S.596 provides 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.”
[6] The Commission, in exercising the discretion, is required to identify if any or all of the circumstances in s.596(2)(a), (b) and (c) can be satisfied by such a decision to allow representation.
[7] The respondent asserts that this matter is not a “simple factual contest” but one that includes a high degree of complexity because both the facts and the evidence are contested by the parties. The respondent submits that the evidence is lengthy and requires proper management, that the performance management process relied upon, presumably by the respondent, requires a specialised knowledge, that there are serious matters for determination and that the legal representatives have represented the respondent for months and are familiar with facts and documentation.
[8] They assert it would be unfair to the respondent to be unrepresented since the respondent does not have the ability to represent itself as its human resources staff are small in number, domiciled in Perth and generally without expertise. The respondent’s national Human Resources Manager is to be a witness in this matter.
[9] The respondent submitted it would not be unfair to the applicant as he has received significant legal advice to date from his advisors. Such representation for the respondent would allow the Commission to focus on the applicant rather than assisting both parties and that legal representation can make the process of examination and presentation of evidence more efficient and better serve justice.
Consideration
[10] The Act is specific at s.596(2)(a) that the Commission may only grant permission if the Commission identifies an enhanced efficiency that would result from such legal representation that is allowed, taking into account the complexity of the matter.
[11] The Commission has a file with the preliminary documentation. The parties are to file their outlines and witness statements if any by various prospective dates. There are no jurisdictional matters to be determined. In the Commission’s view this matter appears to be a claimed performance-based termination not involving any complex aspects or other derivative issues.
[12] From the available information the Commission is of the view the respondent company, with 1180 employees and a required and dedicated Human Resources department, does have the ability to represent themselves in the Commission. Further, there is sufficient period before the arbitral proceedings for such representation to be organised or arranged.
[13] The applicant is to be self-represented and opposes legal representation. In these circumstances the Commission cannot identify an unfairness to the respondent in not being represented. It may be inconvenient to them and not their preference, however the Commission must have regard to considerations of efficiency and fairness as above.
[14] Following such considerations the request for representation by the respondent in these proceedings pursuant to s.596(2) of the Act is refused.
COMMISSIONER
Written submissions:
2013:
19 February
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