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Applicant v Respondent

Applicant v Respondent

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Case Copied 1 May 2014 18 min read

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[2014] FWC 2860

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s 394 - Application for unfair dismissal remedy

Applicant
v
Respondent
(U2011/12007)

DEPUTY PRESIDENT SAMS

SYDNEY, 1 MAY 2014

Application for unfair dismissal remedy - application filed September 2011 - matter listed for arbitration after numerous adjournments - employer’s request for permission to be represented by a lawyer - complexity of matter - fairness between parties - permission granted - further procedural matters to be considered at commencement of hearing.

[1] This decision will determine an application, pursuant to s 596 of the Fair Work Act 2009 (the ‘Act’), by the respondent in an unfair dismissal proceeding for permission to be represented by a lawyer. That proceeding is listed before me for five days commencing on 5 May 2014. The applicant has requested, and I have agreed, that the names of herself and the respondent be suppressed. In addition, I order that access to the file is restricted to the direct parties and their representatives.

[2] After the applicant became aware that the respondent intended to be represented by a lawyer, she raised objections and made other procedural requests when the matter was listed for mention before Wilson C on 22 October 2013 and 24 January 2014.

[3] In a statement issued on 13 February 2014, Wilson C said:

‘[4] In her contact with my Chambers, [the applicant] made certain conduct of hearing applications with respect to representation by the Respondent, the format of the hearing as a determinative conference, separate room allocations, and confidentiality. These are matters which will be considered by the Presiding Member of the substantive hearing.

[5] Accordingly, the matter will be directed to the Unfair Dismissal Case Management Team, who will consult with the parties about the location and duration of the hearing, and arrange for the matter to be listed in the next suitable unfair dismissal roster.

[6] In view of the fact that to date there have only been submissions and statements filed by the Applicant, it will be necessary for the Respondent to be required to file its materials before the hearing.

[7] I emphasise that the listing for hearing process will take its usual course and further requests for adjournment are most unlikely to be entertained. That is, the parties can expect the matter is listed for hearing in April or May 2013 and not later (unless, for some reason associated with the Commission’s timetabling, it is not possible to list it in that period).

[8] The Presiding Member, once assigned the file, will have drawn to their attention the procedural requests made by [the applicant] and will resolve those requests in accordance with their usual practices.’

[4] After the matter was allocated to me for hearing, I directed the parties to file and serve submissions in respect to the application by the respondent for permission to be represented by Mr Michael Easton of Counsel in the substantive proceedings.

Statutory provisions and relevant principles

[5]

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 2860
Decision Date: 1 MAY 2014

CaseChat Overview and Summary

The matter in Applicant v Respondent was an application for an unfair dismissal remedy filed in September 2011. The case involved a dispute between an employee and their employer over the employee's termination of employment. After numerous adjournments, the matter was listed for arbitration. The employer sought permission to be represented by a lawyer due to the complexity of the matter and to ensure fairness between the parties.

The court had to decide whether it was appropriate to grant the employer's request for legal representation, considering the procedural fairness and complexity of the case. The court took into account the need for a fair process and the potential for increased costs and delays if legal representation was not permitted. The court determined that the employer should be allowed to be represented by a lawyer to ensure a fair and efficient hearing.

Following the court's decision, the matter was to proceed to arbitration with the employer represented by a lawyer. The court noted that further procedural matters would be considered at the commencement of the hearing. The court's decision was aimed at ensuring that the arbitration process was conducted fairly and efficiently, taking into account the complexity of the case and the need for procedural fairness between the parties.

Orders