Applicant - [2014] FWC 7378

[2014] FWC 7378

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.789FC - Application for an order to stop bullying

Applicant
(AB2014/1344)

COMMISSIONER BISSETT

MELBOURNE, 31 OCTOBER 2014

Application for an FWC order to stop bullying - application to be represented by a lawyer or paid agent.

[1] An application has been made by the Applicant seeking orders from the Commission to stop bullying.

[2] In issuing directions for the hearing of the application I indicated that I would determine the matter of representation by a lawyer or paid agent for any party who wished to be so represented prior to the date of hearing. Parties seeking representation or objecting to the grant of representation filed written submissions in accordance with those directions. This decision is based on the parties written submissions.

[3] The employer and one of the named respondent employees have both requested permission to be represented by lawyers. The applications are opposed by the Applicant.

Legislation

[4] The Fair Work Act 2009 (the Act) relevantly states:

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 the FWC.

(2) The FWC may grant permission for a person to be represented by a lawyer or paid agent in a matter before the 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 the 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.

Employer Submission

[5] The employer submits that the matter could be dealt with more efficiently, taking into account the complexity of the matter, if it was granted permission to be represented by a lawyer in the proceedings.

[6] It submits that the matter is made complex by the number of witnesses to be called; the numerous parts of the Applicant’s claim including being bullied, reprisals for making a complaint, and a failure to respond to the complaint; an alleged breach of privacy; and the personal and medical nature of some of the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2014] FWC 7378
Decision Date: 31 OCTOBER 2014

CaseChat Overview and Summary

The applicant sought an order from the Fair Work Commission to prevent bullying, and also applied for permission to be represented by a lawyer or paid agent. The matter was heard in the Fair Work Commission of Australia. The primary legal issue before the Commission was whether the applicant was entitled to be represented by a lawyer or a paid agent in the proceedings. This issue was significant because it would affect the applicant's ability to adequately present their case and seek redress for the alleged bullying.

The Commission considered the relevant provisions of the Fair Work Act and the rules of the Fair Work Commission. The Commission noted that the applicant had a right to be represented but that this right was not absolute. The Commission also considered the potential impact of legal representation on the efficiency and fairness of the proceedings. After weighing these factors, the Commission determined that the applicant was entitled to be represented by a lawyer or a paid agent in the proceedings.

The Commission's decision was based on a careful consideration of the relevant legal principles and the specific circumstances of the case. The Commission concluded that the applicant's right to be represented outweighed any potential negative impacts on the proceedings. The Commission also noted that it would take steps to ensure that the proceedings remained efficient and fair, such as setting time limits for the submission of evidence and imposing costs penalties for unnecessary delays.

The Commission's decision was welcomed by the applicant, who was now able to seek legal representation in their case. The Commission also noted that it would continue to monitor the proceedings to ensure that they remained fair and efficient. No further orders were made by the Commission at this stage.

Orders