David Waszeniuk v Bedford Phoenix Incorporated

[2015] FWC 6899

[2015] FWC 6899

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

David Waszeniuk
v
Bedford Phoenix Incorporated
(U2015/9155)

SENIOR DEPUTY PRESIDENT O’CALLAGHAN ADELAIDE, 7 OCTOBER 2015

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

[1] Mr Waszeniuk has made an application pursuant to s.394 of the Fair Work Act 2009 (the FW Act) in relation to the termination of his employment with Bedford Phoenix Incorporated (Bedford). This application is listed for arbitration later this month. This decision deals specifically with a request made by Ms McCarthy of Piper Alderman Lawyers for a grant of permission to represent Bedford in this arbitration.

[2] On 24 August 2015 Commissioner Wilson addressed the issue of representation in a directions conference and issued the following directions:

“[2] I note that the Respondent seeks permission for representation by a lawyer and that the Applicant may also seek legal representation. Formal requests for representation from either party are to be filed with the Commission at the same time as the filing of the submissions and witness statements in accordance with paragraph [4] below. Any objection to legal representation is to be made by close of business on Friday, 2 October 2015, after which the other party’s response will be sought. So far as is reasonably practicable, a decision about legal representation will be made prior to the Determinative Conference.”

[3] On 1 October 2015 Mr Waszeniuk confirmed that he objected to Bedford having legal representation as he had been unable to obtain legal representation himself. Ms McCarthy provided a statement on 3 September 2015. In that statement, Ms McCarthy asserted that the matter contained a number of complex legal and factual issues, including issues associated with whether Mr Waszeniuk had abandoned his employment, such that the Fair Work Commission (the FWC) would be able to more efficiently determine the matter through the involvement of a lawyer. Furthermore, Ms McCarthy asserted that the history of acrimonious dealings between Mr Waszeniuk and Bedford personnel meant that, without legal representation, dealing with the matter would be fraught with difficulty. Ms McCarthy asserted that Bedford did not have the appropriate human resource expertise to represent itself relative to the abandonment of employment principles. Thirdly, Ms McCarthy asserted that Bedford had been legally represented and advised over the duration of this matter and that it was possible, if not probable that Mr Waszeniuk would also be assisted by an experienced person. Ms McCarthy asserted that other decisions of the FWC in comparable situations supported her request for a grant of permission.

[4] Representation of a party in the FWC by a lawyer or paid agent generally requires a grant of permission to this effect. Section 596 relevantly states:

“596 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 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.

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] I have considered the request for a grant of permission for representation on the basis of this statutory provision.

[6] The information about the merits of the application available to me at this time indicates that the termination of Mr Waszeniuk’s employment followed various incidents which Bedford described, in its correspondence to him of 21 November 2014, as “anxiety-related issues” in the form of “verbally abusive and threatening outbursts directed at support staff”. Mr Waszeniuk’s witness statement refers to his anxiety attacks and arguments and to the involvement of psychiatrists in response to a requirement that he undertake medical assessment as a prerequisite for any return to work. It appears that there are contested issues of fact that are likely to become relevant to the abandonment of employment contention. Whilst I have formed no conclusion about either the circumstances of the termination of Mr Waszeniuk’s employment or the fairness of any such employment termination, the information before me indicates that there were various and, at least at times, very heated and acrimonious discussions involving Mr Waszeniuk. That information gives rise to a concern that, there is a real possibility that the determination of the matter may be made more difficult and complex by the acrimonious relationship between Mr Waszeniuk and Bedford management personnel. I am satisfied that this concern is sufficiently clear from the material already provided to me so as to warrant a grant of permission pursuant to s.596(2)(a). Consequently, I have concluded that representation of Bedford by a lawyer would enable the matter to be dealt with more efficiently.

[7] I am not satisfied that Bedford is unable to represent itself in this matter so as to meet the requirements of s.596(2)(b).

[8] In terms of s.596(2)(c), I am not satisfied that there is any information before me which indicates that Mr Waszeniuk is going to seek to be represented or advised by a person who has skills which would mean that it would be unfair not to allow Bedford to be legally represented. Accordingly, I have not relied on this provision of the FW Act.

[9] In summary, I am satisfied that the particular prerequisite requirements of s.596(2)(a) have been met in this instance such that a grant of permission for Bedford to be legally represented in this matter is appropriate, and that permission is granted.

[10] Two final comments are appropriate. Firstly, because Mr Waszeniuk may not be represented or advised in this proceeding, he should note that, if at any point in the determination of the matter he requires external advice or assistance, he should make a request to this effect. I further note that this matter is listed for Member assisted conciliation on 13 October 2015.

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