D RyanvTarget Australia Pty Ltd

[2014] FWC 7207

[2014] FWC 7207

FAIR WORK COMMISSION

PROVISIONAL DECISION

Fair Work Act 2009
s.394—Unfair dismissal

D Ryan
v
Target Australia Pty Ltd
(U2014/8322)

SENIOR DEPUTY PRESIDENT WATSON MELBOURNE, 13 OCTOBER 2014

Application for relief from unfair dismissal - provisional decision - representation.

[1] On 14 July 2014, Mr D Ryan (Applicant) made application under s.394 of the Fair Work Act 2014 (the Act)for relief in respect to the termination of his employment by Target Australia Pty Ltd (Respondent).

[2] On 6 October 2014, the Respondent applied through its solicitors under s.596(2)(a) and (c) of the Act to be legally represented.

[3] Section 596of the Act provides:

“(1) Except as provided by subsection (3) or the procedural rules, a person may be represented in a matter before the FWC (including by making an application or submission to the FWC on behalf of the person) by a lawyer or paid agent only with the permission of the FWC.

(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.”

[4] In support of permission to be legally represented under s.596(2)(a) of the Act, the Respondent submitted that legal representation would enable the matter to be dealt with more efficiently, having regard to the complexity of the matter on the basis of:

● The existence of nine witnesses, at least six of whom are required for cross-examination;

● A key factual difference in the accounts of the Applicant and a witness for the Respondent (Mr J King) as to whether the Applicant grabbed the arm of Mr King, which will raise questions of witness credibility;

● Issues arising from the behaviour of the Applicant which raises a question of serious misconduct or otherwise provides a valid reason for termination; and

● If the dismissal is held to be unfair, a question will arise as to the impact of the Applicant’s conduct on the level of compensation which might be awarded.

[5] It was contended that these are complex matters and legal representation of the Respondent will allow these complex matters to be dealt with more efficiently and allow key issues to be better identified and cross-examined on.

[6] In support of permission to be legally represented under s.596(2)(c) of the Act, the Respondent submitted that it would be unfair not to allow the Respondent to be represented taking into account fairness between the Applicant and Respondent. In this regard it is noted that the Applicant is represented (in a capacity unknown to the Respondent) and correspondence on behalf of the Applicant indicates familiarity with legal concepts in issue. It submitted that the Target Human Resources Advisor who was involved in the dismissal is herself a witness required for cross-examination.

[7] The Respondent sought that its application for representation be determined on the papers in advance of the hearing, scheduled to commence on 20 October 2014.

[8] On 9 October 2014, Mr C Ryan (the Applicant’s brother) opposed the grant of permission for Target to be legally represented. He indicated that he and a family friend (Mr Tomming) were representing the Applicant because he has been emotionally impacted by the termination and needs someone less personally invested in it to represent him. Neither Mr Ryan nor Mr Tomming are registered legal practitioners or paid agents.

[9] Mr Ryan submitted that the complexity of the matter does not warrant legal representation and representation raised an issue of fairness.

Consideration

[10] The Respondent did not contend that it would be unfair not to allow it to be represented because it is unable to represent itself effectively (s.596(2)(b).

[11] I am not satisfied that it would be unfair not to allow the Respondent to be represented taking into account fairness between it and the Applicant in the matter. The Respondent has Human Resources staff able to represent it and would suffer no unfairness in doing so against lay representatives of the Applicant. The fact that the Human Resources Advisor involved in the dismissal is a witness in the matter does not create such unfairness. Her evidence, as filed, is limited in its compass, supports that of another Respondent’s witness and is supported by a contemporaneous record. Another Human Resources officer would be able to represent the Respondent for the purpose of examination of that witness.

[12] Finally, I am not satisfied that the issues raised by the Respondent in their application for representation involves a degree of complexity of the matter in which legal representation by the Respondent would enable the matter to be dealt with more efficiently. No unusual or complex legal issues are apparent in the materials filed for the arbitration. There is some conflict in the evidence as filed but the resolution of it does not raise a complexity supporting legal representation by the Respondent to achieve an efficient hearing and determination of the matter. The issues of serious misconduct, a valid reason for the termination and an effect of the Applicant’s conduct on compensation does raise a complexity supporting legal representation.

[13] On the material before me I am not persuaded to grant permission for the Respondent to be legally represented. However, I am conscious that the Respondent has not been afforded a right of reply “on the papers” on its application for representation and may wish to seek clarification of the proposition by Mr C Ryan that neither he nor Mr Tomming are “registered legal practitioners”. As a result, my decision to refuse permission is provisional, subject to a right of the Respondent to put reply submissions at the commencement of the hearing on 20 October 2014.

[14] I publish this provisional decision now, in order to allow relevant Respondent officers to prepare for the presentation of their case if they chose not to put reply submissions on the issue of legal representation or in the event that, if they do put reply submissions, I refuse permission for legal representation having considered such reply submissions.

SENIOR DEPUTY PRESIDENT

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