Brendan Clarke v Central Queensland Services Pty Ltd
[2022] FWC 1589
•23 JUNE 2022
| [2022] FWC 1589 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Brendan Clarke
v
Central Queensland Services Pty Ltd
(U2022/3623)
| COMMISSIONER SIMPSON | BRISBANE, 23 JUNE 2022 |
Application for an unfair dismissal remedy - application for permission to be legally represented.
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). Central Queensland Services Pty Ltd (the Respondent) has sought permission be granted legal representation which is opposed by Mr Brendan Clarke (the Applicant), who is self-represented however assisted by his wife who it appears has a legal background of some kind but has not worked in the field for some time.
The Respondent lodged a Form F53 on 13 June 2022. The next day on 14 June 2022, the Applicant objected to the Respondent being legally represented. I subsequently issued Directions for the parties to file submissions regarding this issue. Both parties filed in accordance with the Directions.
On first impressions this would appear to be a case where the Commission may well have declined the Respondent’s application for legal representation given the identity of the Respondent as a large and sophisticated employer, and the potential unfairness that could arise given the Applicant is self-represented and has raised the issue of his limited literacy. However, on a closer inspection of the Applicant’s case it becomes apparent that the Applicant has filed submissions in the substantive matter raising both alleged unfair and also unlawful acts on the part of the Respondent.
Had the case proceeded primarily on the basis of a failure to consult (which forms a part of the Applicant’s case) and been confined to issues of fairness associated with the Respondent arriving at the decision to terminate the Applicant, then the Applicant would have a very good case to oppose the granting of leave to the Respondent. Factual disputes may arise in respect of those issues however that would not necessarily warrant the granting of legal representation to a large employer with in-house expertise. However, the Applicant goes on to make submissions that the Respondent has engaged in unlawful conduct in the form of adverse action under the Fair Work Act 2009, including unlawful coercion in relation to vaccination, unlawful breach of its enterprise agreement, breach of the Workplace Health and Safety Act 2011, unlawfully acting outside of the Coal Mining Safety and Health Regulation 2017 and the Coal Mining Safety and Health Act 1999 and also offending the Anti-Discrimination Act 1991.
The Applicant has also made submissions to the effect that the Respondent breached the contract of employment, referring to various legal authorities in the context of whether the employer’s direction was lawful and reasonable. The Applicant has also foreshadowed a challenge to the basis for the alleged stand down of the Applicant which will give rise to issues regarding interpretation of the enterprise agreement.
I have weighed each of the considerations in section 596 of the Act. Whilst the Commissions jurisdiction in the substantive matter is to deal with the question of whether the dismissal was unfair, and not to finally determine whether that Respondent has acted unlawfully (which falls within the jurisdiction of the Courts), it is open for the Commission and sometimes necessary to form a view on the balance of probability in relation to such matters, along the way to determining whether a dismissal is unfair. If the Commission was to form a view that the Respondent acted unlawfully in connection with a dismissal, that would in all likelihood result in a finding that the dismissal is unfair. In the circumstances of this case where the Applicant’s case includes a range of allegations of unlawful conduct on the part of the Respondent under various legislation, I am satisfied it is appropriate to exercise my discretion to grant the employer the right to be represented by a lawyer, and on that basis, leave is granted under section 596 for the Respondent to be represented.
COMMISSIONER
Printed by authority of the Commonwealth Government Printer
<PR742931>
2
0
0