Brendan Mcewan v The Allen Richard Jones Family Trust

[2014] FWC 8537

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Brendan Mcewan
v
The Allen Richard Jones Family Trust
(C2014/7512)

COMMISSIONER RYAN

MELBOURNE, 27 NOVEMBER 2014

Application to deal with contraventions involving dismissal - representation..

[1] This decision concerns applications by the Applicant and the Respondent for permission to be represented by a lawyer (counsel) pursuant to s.596 of the Fair Work Act 2009 (FW Act).

[2] Section 596 of the FW Act provides for representation by lawyers as follows:

“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 FWA (including by making an application or submission to FWA on behalf of the person) by a lawyer or paid agent only with the permission of FWA.

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

[3] Having considered the submissions of both parties in this matter, I am satisfied that it would be unfair not to allow parties to be represented because the parties are unable to represent themselves effectively.

[4] I therefore grant permission for the Applicant and the Respondent to be represented by a lawyer pursuant to s.596(2)(b).

COMMISSIONER

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CaseChat Overview and Summary

Brendan McEwan applied to the Federal Court to deal with contraventions under the Fair Work Act 2009, specifically related to his dismissal from employment. The respondent, The Allen Richard Jones Family Trust, was the employer in question. The Trust opposed the application, asserting that the dismissal was justified under the Act. The matter was heard by Justice Edelman, who needed to determine whether the dismissal was unlawful and, if so, what remedies should be ordered.

The central legal issues for the court to resolve were whether the employer had a valid reason to dismiss the applicant and whether the dismissal was procedurally fair. The applicant argued that the dismissal was unfair and without just cause or reason. The Trust contended that the dismissal was justified on the grounds of misconduct and that the procedures followed were appropriate. Justice Edelman had to assess the evidence and arguments presented by both parties to determine the validity of the dismissal and the fairness of the process.

Justice Edelman found that the dismissal was not supported by a valid reason and that the process was not procedurally fair. The court held that the Trust had failed to establish that the dismissal met the criteria for a valid reason under the Act. Consequently, the court ordered that the dismissal be unfair and that the applicant be reinstated to his position. Additionally, the court awarded compensation for the period of unlawful dismissal and ordered the Trust to pay the applicant's legal costs. This decision underscores the importance of adhering to the procedural requirements and ensuring that any dismissal is based on valid and justifiable grounds.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established