Cecilia Fleming v Sonic Innovations Pty Ltd T/A Pacific Retail Solutions

[2015] FWC 8476

[2015] FWC 8476

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Cecilia Fleming
v
Sonic Innovations Pty Ltd T/A Pacific Retail Solutions
(U2015/12952)

SENIOR DEPUTY PRESIDENT O’CALLAGHAN ADELAIDE, 8 DECEMBER 2015

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

[1] Ms Fleming has lodged an application pursuant to s.394 of the Fair Work Act 2009 (the FW Act) with respect to the termination of her employment with Sonic Innovations Pty Ltd T/A Pacific Retail Solutions (Pacific Retail Solutions). This application is listed for a determinative conference on 3 February 2015. This decision deals specifically with the issue of representation.

[2] In directions issued on 25 November 2015 I advised:

“[2] I note that Ms Babidge has advised that a grant of permission to represent Sonic Innovations Pty Ltd is being sought. Ms Babidge is required to provide, to both the Commission and to Miss Fleming, by close of business 3 December 2015, a brief written submission detailing the basis upon which that permission is requested. In the event that Miss Fleming objects to permission for legal representation being granted to Ms Babidge, she is required to provide, to both the Commission and to Ms Babbage, a brief written submission detailing the basis of her position. This is to be provided by close of business 10 December 2015. I attach a copy of s.596(2) of the Fair Work Act 2009, which deals with the issue of permission for representation.

[3] I have subsequently received submissions in support of a grant of representation and a submission in response from Ms Fleming. In considering this issue I have taken into account both the application and the employer’s response to that application (the Form F3).

[4] 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.”

[5] In her application, Ms Fleming asserts she was dismissed for bullying and misconduct and that the process and basis for her dismissal was inherently flawed. In its response to the application Pacific Retail Solutions asserts that the process followed to effect the termination of Ms Fleming’s employment was fair and that it establishes that her behaviour represented misconduct in the form of bullying and harassment which amounted to a valid reason for the termination of her employment.

[6] Ms Babbage asserts that permission for representation should be granted pursuant to s.596(2)(a) because the matter will involve the determination of technical legal issues and the facts in dispute between the parties.

[7] In terms of s.596(2)(b) Ms Babbage submitted that Pacific Retail Solutions had only a small human resource management function. One of the two human resource management specialists was new to Australia and the other asserted that she did not have the capacity to represent the employer without assistance and was also heavily preoccupied in business planning functions.

[8] In response, Ms Fleming asked that I take into account her lack of legal experience. Ms Fleming asserted that Pacific Retail Solutions had the internal resources necessary to properly represent it. Ms Fleming asserted that, as she could not afford a lawyer it would be highly unfair if Pacific Retail Solutions was so represented.

[9] I have also noted that Ms Babbage referred to a number of authorities dealing with the issue of representation. I have taken those authorities into account.

Findings

[10] I have considered the extent to which a grant of representation should be issued on the basis that it would enable the matter to be dealt with more efficiently, because of its complexity. I am not satisfied that this is the case. The material before me does not establish a significant level of complexity other than determination of this issue on the facts.

[11] In terms of the second limb of Ms Babbage’s submissions relative to Pacific Retail Solutions’ asserted incapacity to represent itself effectively, I am not satisfied that Pacific Retail Solutions is unable to represent itself effectively, particularly given that at least one of its human resource management specialists appears to have been involved in the termination decision.

[12] For the reasons set out in this decision, I am not prepared to grant permission for representation of Pacific Retail Solutions by a lawyer pursuant to s.596(2)(a).

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