Boguslaw Bienias v Iplex Pipelines Australia Pty Limited T/A Iplex Pipelines Australia

[2016] FWC 6166

[2016] FWC 6166

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Boguslaw Bienias
v
Iplex Pipelines Australia Pty Limited T/A Iplex Pipelines Australia
(U2016/3008)

SENIOR DEPUTY PRESIDENT O’CALLAGHAN ADELAIDE, 30 AUGUST 2016

Permission to be represented by a 'lawyer or paid agent' pursuant to s.596 of the Fair Work Act 2009.

[1] Mr Bienias has made an unfair dismissal application pursuant to s.394 of the Fair Work Act 2009 (the FW Act), in relation to the termination of his employment with Iplex Pipelines Australia Pty Limited T/A Iplex Pipelines Australia (Iplex). The application is listed for a determinative conference on 21 September 2016.

[2] I note at the outset that Mr Bienias’ application was lodged outside of the statutory time limit but an extension of that time limit was granted by Deputy President Clancy on 3 August 2016. 1 A grant of permission was made to an Ashurst Australia lawyer in that extension of time matter.

[3] In directions issued on 8 August 2016, I stated:

“[2] I note that Mr Wade has given notice that he requests a grant of permission to represent Iplex Pipelines Australia Pty Limited T/A Iplex Pipelines Australia (Iplex) and that Mr Bienias has foreshadowed that he opposes that request. Mr Wade is required to provide to the Commission and to Mr Bienias, by close of business 16 August 2016, a brief submission detailing the basis upon which that permission is requested. If Mr Bienias opposes that request, he is required to provide to the Commission and to Iplex, by close of business 23 August 2016, a brief submission setting out the basis for his opposition. In that event, and in that event only, a decision on the representation issue will be provided as soon as practicable. For the information of the parties, I have attached a copy of s.596 (2) of the Fair Work Act 2009 (the FW Act), which deals with the issue of representation.”

[4] Consistent with these directions I have now received written submissions from Ashurst Australia, seeking permission for a lawyer to represent Iplex, and from Mr Bienias, in opposition to that request.

[5] Section 596(2) states:

“596 Representation by lawyers and paid agents

…

(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.”

[6] In considering the position put by Ashurst Australia, I have noted that Iplex is a substantial employer. The Employer’s Response (Form F3) advises that Iplex employed 665 employees at the time of the termination of Mr Bienias’ employment. The Ashurst Australia submission is predicated on the position that one or more of the requirements in s.596(2) are satisfied in this instance.

[7] Ashurst Australia asserts that a grant of permission would enable the matter to be dealt with more efficiently. In this regard it asserts that the application raises issues of complexity in as much as the application will involve consideration of whether, pursuant to the provisions of the Manufacturing and Associated Industries and Occupations Award 2010, Mr Bienias should be considered to have abandoned his employment rather be regarded as dismissed. In the alternative, Ashurst’s argue that there is some complexity in the consideration of the Iplex position that any termination of Mr Bienias’ employment should be considered to be fair. Additionally Ashurst's assert that contested issues of fact create complexity which means that the involvement of a lawyer will contribute to the more efficient conduct of the proceedings. Ashurst’s assert that its involvement in the extension of time considerations and in the preparation of the materials for this matter mean that its on-going involvement will expedite consideration of the matter.

[8] In terms of s.596(2)(b), Ashurst's asserted that the Iplex People and Performance Business Partner, Ms Holt, who would need to represent Iplex if permission was refused, was a key witness in the matter and did not have the requisite experience in the Commission.

[9] Mr Bienias’ position was that a grant of permission would constitute unfairness in that he would be representing himself with the assistance of his wife. Mr Bienias advised that he had been ill and that he remained under medical care.

[10] In terms of the extension of time proceedings, Mr Bienias asserted that the involvement of Ashurst's had not contributed to the efficient conduct of those proceedings. Mr Bienias also contended that Ashurst's could not contribute to the efficient assessment of his state of mind.

[11] In terms of s.596(2)(b), Mr Bienias asserts that Ms Holt of Iplex is in a better position than himself in that he has no experience in matters such as this. Mr Bienias asserts that Iplex management made the decision to terminate his employment and hence should be able to represent the employer position to appropriate effect. Mr Bienias asserts that the material provided by Ashurst's to date in this matter had not contributed to the efficient conduct of the matter.

[12] Mr Bienias relied on the provisions of the Explanatory Memorandum to the FW Act and on various decisions in support of his position. He referred to the substantial size of the Iplex business globally.

[13] Finally, Mr Bienias asserted that a grant of permission would constitute an inherent unfairness to him which would prejudice his capacity to access a fair hearing.

[14] I have concluded that permission should be granted pursuant to s.596(2)(a). I am satisfied that Mr Bienias’ application raises issues of some complexity in terms of whether he was dismissed or whether he abandoned his employment. Furthermore, if Mr Bienias was dismissed, the basis for that dismissal will most likely depend on somewhat complex issues and evidence such that the involvement of a lawyer will facilitate the more efficient conduct of the matter. In this respect, the assessment required here goes to matters of degree in terms of the more efficient conduct of the proceedings. I am not satisfied that difficulties or issues associated with the conduct of the application to date have been fairly attributed to Ashurst. In this regard, I am satisfied, on the limited material before me, that the application has the very real potential to raise some quite complex issues relating to the fair treatment of Mr Bienias.

[15] Mr Bienias’ concerns about the equity of consideration of his application need to be seen in the context of the provisions of s.596(2). There is no express capacity to refuse permission for representation of one party on the basis that the other party is not represented. In contrast, s.596(2)(c) provides a basis for a grant of permission on the basis of consideration of the other party’s position. Notwithstanding this, I think Mr Bienias’ concerns are misplaced. An important part of the role of the Commission is to ensure both parties have access to fair consideration of their respective positions. It is quite conceivable that the involvement of a lawyer will enable advice to be given to Iplex in the course of the hearing, which may then impact on the proceedings.

[16] I am not satisfied that this permission should be granted on the basis of s.596(2)(b) in that it seems to me that Iplex would be able to represent itself efficiently.

[17] This grant of permission needs to be seen in context. I will endeavour to provide procedural guidance to Mr Bienias relative to the conduct of the proceedings. Additionally, Mr Bienias will be able to request brief breaks in the proceedings in the event that he needs to review his position and/or seek advice. Finally, it goes almost without saying that I anticipate the normal highest standards of professionalism on the part of Ashurst's.

[18] Permission is granted on this basis.

 1   [2016] FWC 5357

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