Colin Turci v DHL Express

[2015] FWC 1147

[2015] FWC 1147

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Colin Turci
v
DHL Express
(U2014/15347)

SENIOR DEPUTY PRESIDENT O’CALLAGHAN ADELAIDE, 18 FEBRUARY 2015

Application for relief from unfair dismissal - representation granted.

[1] Mr Turci has made an application pursuant to s.394 of the Fair Work Act 2009 (the FW Act) with respect to the alleged termination of his employment with DHL Express (DHL). That application has been listed for a hearing on 10 March 2015. This decision deals with a request for a grant of permission, pursuant to s.596(2) of the FW Act, made by Mr Murphy and Mr Austin Woods, of counsel to represent DHL.

[2] Mr Turci’s application was the subject of a telephone directions conference on 9 February 2015. In that conference, Mr Lawrie, an Industrial Lawyer for the Transport Workers Union SA/NT Branch, represented Mr Turci. The Directions issued following that conference reflected the agreed position with respect to the representation issue. These Directions stated:

“[2] The FAIR WORK COMMISSION DIRECTS DHL Express to file in the Commission and serve on Mr Lawrie of the TWU, representing Mr Turci, by close of business Wednesday, 11 February 2015 a brief submission in support of its request for a grant of permission pursuant to s.596(2) of the Fair Work Act 2009 (the FW Act).

[3] On the basis that such a grant is opposed a submission detailing Mr Turci’s position in this regard is to be filed in the Commission and provided to Mr Austin-Woods by close of business 16 February 2015. My decision in relation to legal representation will be provided to the parties soon after that date.”

[3] Written submissions in support of the DHL request for a grant of permission for legal representation were received on 11 February 2015. Those submissions asserted that permission should be granted pursuant to s.596(2)(a) on the basis that it would enable the matter to be dealt with more efficiently, taking into account the complexity of the issues involved. The DHL submissions asserted that the application involved multiple witnesses and disputes over the evidence. Further, that DHL could not represent itself effectively in the hearing and that, because Mr Lawrie was legally qualified it would be unfair not to permit DHL to be similarly legally represented.

[4] Mr Lawrie provided submissions opposing the request for representation on 16 February 2015. In these submissions he asserted that there was nothing about the issues to be determined in this matter which were so complex that permission should be granted pursuant to s.596(2)(a). Furthermore, Mr Lawrie submitted that DHL, as a substantial employer was sufficiently large and well resourced so as to adequately and fairly represent itself. Finally, Mr Lawrie asserted that DHL’s Human Resources Manager was sufficiently experienced such that DHL would not be disadvantaged if he was to represent them, and in any event DHL had adequate in-house expertise able to deal with issues such as this.

[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] I consider that a grant of permission pursuant to s.596(2)(a) is appropriate in these circumstances. I am satisfied that legal representation will enable more efficient consideration of the issues associated with Mr Turci’s application. I am also satisfied that a grant of permission pursuant to s.596(2)(c) is appropriate in these circumstances as Mr Turci is represented by a person with legal qualifications and, accordingly a similar opportunity is appropriately made available to DHL.

[7] Permission for legal representation pursuant to s.596(2)(a) and (c) is granted on this basis.

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