DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Edward Wilcox
v
Holcim (Australia) Pty Ltd T/A Humes
(U2016/4050)

[1] This decision involves an application for permission to be legally represented in an unfair dismissal application made pursuant to s.394 of the fair Work Act 2009 (the Act). The unfair dismissal application was made by Mr Edward Wilcox (“the Applicant”) who alleges that the termination of his employment with Holcim (Australia) Pty Ltd T/A Humes (“the Respondent”) was unfair.

[2] The unfair dismissal matter was listed for directions on 5 April 2016 and was subsequently listed for hearing on 15, 16 and 17 June 2016 in Townsville. At the directions hearing the Applicant’s representative who is entitled to appear on behalf of the Applicant in accordance with section 596(4) of the FW Act opposed the Respondent being legally represented.

[3] I provided the parties with the opportunity to make submissions as to whether the Fair Work Commission (FWC) should grant permission for the Respondent to be represented by a lawyer.

[4] Section 596 of the Act 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 the FWC (including by making an application or submission to the FWC on behalf of the person) by a lawyer or paid agent only with the permission of FWC.

(2) FWC may grant permission for a person to be represented by a lawyer or paid agent in a matter before FWC 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 FWC 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) The FWC’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 Registered Organisations Act; or
(iii) a peak council; or
(iv) a bargaining representative;

that is representing the person; or
(c) is a bargaining representative.

[5] The Respondent submits amongst other things resolution of the issues in dispute will require proper and competent cross-examination. This is especially so in a case that may give rise to complex standard of proof considerations, for example the application of the principles enunciated in Briginshaw v Briginshaw (1938) 60 CLR 336.

[6] The Respondent submits that the matter is factually complex as it involves factual disputes concerning whether or not the alleged events occurred, whether or not the Applicant was involved, and the manner in which the investigation into the alleged misconduct was conducted, including whether the Applicant was candid with his employer during the investigation.

[7] The Respondent submitted that matters of a technical nature as to the alleged failed quality tests of the products provided to the Respondent’s customers and the Applicant’s understanding of those quality procedures must also be explored. It is argued the disputed factual matters will ultimately be determined through the evidence of the parties as to what did and did not happen, involving witness examination and cross examination.

[8] The Respondent said it will likely rely on the evidence of 5 or 6 witnesses and the Applicant 3 or 4 witnesses. The Applicant submits it is likely to have 2 witnesses. It was argued given the breadth of the evidentiary material to be relied upon by the parties, the matter will be more efficiently dealt with if the Respondent is provided with permission to be legally represented.

[9] The Respondent submits issues concerning the common law duties of fidelity and confidence are also enlivened, given the allegation that the Applicant was dishonest in his dealing with the Respondent.

[10] The Applicant submits that the matter is not sufficiently complex to warrant legal representation. The Applicant responded in some detail to the submission of the Respondent refuting the arguments set out above as put for the Respondent. I have read the Applicant’s submissions and do not intend to repeat them but have not been persuaded by those submissions that the matter will not involve complexity justifying legal representation. The allegations relied upon by the Respondent to terminate the Applicant are serious allegations, the matter will turn to some degree on the credit of witnesses and having lawyers representing both parties will be of assistance.

[11] I am satisfied that this matter is sufficiently complex to exercise my discretion in favour of granting the Respondent legal representation on the basis that it will lead to greater efficiency in dealing with the matter. Whilst it is only necessary for the FWC to be satisfied of one of the elements set out in section 596(2) in order to decide to exercise discretion in favour of the grant of permission to appear, as each subsection was in dispute for completeness I will address each of them.

[12] The Respondent also submits that it would be unfair not to allow it to be represented because it does not employ a suitable person to represent itself. The Applicant submitted Ms Louise Elks a Human Resources Manager, is more than capable of representing the Respondent given her previous experience. The Respondent submits firstly Ms Elks has no legal qualifications and does not have any relevant advocacy or tribunal experience, and secondly Ms Elks will be a witness for the Respondent. I am satisfied it is reasonable for the Respondent not to want Ms Elks to conduct the case as well as be a witness in the circumstances of this case.

[13] The Applicant also submitted that the Respondent has other dedicated human resources practitioner advocates who could conduct its case. The Respondent said it does not employ any human resources personnel who are legally qualified or who have the requisite level of advocacy or tribunal experience. On the basis of the Respondents submission that it’s other human resources staff do not have relevant advocacy or tribunal experience I am persuaded that is a basis to grant the Respondent legal representation.

[14] Finally the Respondent submits that it would be unfair not to allow it to be legally represented taking into account fairness between it and the Applicant, given the Applicant will be represented by a highly experienced employment and industrial lawyer who is entitled to appear in accordance with s.596(4)(b)(i) of the FW Act.

[15] The Respondent submitted Mr Port (who will act for the Applicant) prior to assuming his current role as the Industrial and Operating Manager of the CSR & Holcim Staff Association, was a Solicitor Advocate and Senior Solicitor in the firm W.G McNally Jones Staff Lawyers for approximately 6 years. Further Mr Port has the knowledge of the history of the matter.

[16] It is submitted for the Applicant that Mr Port is the Industrial and Operating Manager and also the only employee of the CSRHSA, as well as being a Solicitor on the Record who was admitted to practice on 6 October 2006 and currently holds a practicing certificate. It is said Mr Port is charged with carriage of the matter by the fact that he is the only employee of the CSRHSA, and that in accordance with the FW Act a person is taken not to be represented by a lawyer or paid agent if the lawyer or paid agent is an employee or officer of an organisation. Further it is argued s.596(2)(c) must not read or interpreted in isolation from the operation of s.596(4)(b)(i)

[17] I understand the submission of the Applicant on this point to be to the effect that given the language of the FW Act states that the Applicant is not taken to be represented by a lawyer, therefore weight should not be given to the fact of Mr Port being a lawyer in making a determination under s.596(2)(c). If I have correctly described what I understand to be the submission, I do not agree with it. It is common for the FWC to give consideration to the skill and experience of advocates who appear by way of right under section 596(4) relative to the opposing party’s in-house capacity in determining whether permission should or should not be granted. It is evident Mr Port as a matter of fact is a highly experienced industrial lawyer, and the Respondent has no in-house capacity approximating his level of skill and experience. On that basis I am satisfied it would be unfair not to allow the Respondent to be represented by a lawyer taking into account fairness between it and the Applicant.

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