David Welsby v Artis Group Pty Ltd

[2016] FWC 675

[2016] FWC 675

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

David Welsby
v
Artis Group Pty Ltd
(U2015/9976)

COMMISSIONER PLATT ADELAIDE, 2 FEBRUARY 2016

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

[1] Mr Welsby has lodged an application pursuant to s.394 of the Fair Work Act 2009 (the FW Act) with respect to the termination of his employment with Artis Group Pty Ltd (Artis). The application is listed for hearing on 29 February 2016. The matter had previously been the subject of a jurisdictional challenge which was heard before me on 19 November 2015. This hearing was conducted by the parties without legal representation. This decision deals only with the issue of representation.

[2] In directions issued on 9 December 2015 the parties were advised:

“[2] I note Harris & Company Lawyers have indicated that a grant of permission for legal representation of Artis Group Pty Ltd will be sought. I have attached a copy of s.596(2) of the Fair Work Act 2009, which details the basis upon which permission may be granted. Harris & Company Lawyers are directed to provide to the Commission, and to Mr Welsby, by 24 December 2015, a brief submission addressing this section.

[3] In the event that Welsby opposes the request for permission made by Harris & Company Lawyers, he is directed to detail his position in a brief submission to be provided to the Commission and to Artis Group Pty Ltd by 8 January 2016. In this event, a decision relative to the issue of representation will be issued as soon as practicable.”

[3] On 24 December 2015 Mr Zreika of Harris & Company filed a Form 53 and formally sought leave to appear. A copy of the form was served on Mr Welsby. No supporting submissions were provided.

[4] In considering this issue I have taken into account both the application (Form F2) and the employer’s response to that application (Form F3). I have also taken into account my observations of the capacity of the parties to represent themselves during the jurisdictional hearing.

[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] In his application, Mr Welsby asserts that he was dismissed with notice for performance, and during the notice period was summarily dismissed due to a breach of confidentiality and privacy. Mr Welsby disputes the basis upon which his employment was terminated. In its response to the application Artis asserts that Mr Welsby was dismissed as a result of sustained losses with no sign of recovery and that during the notice period a large amount of corporate and personal data had been copied and/or deleted which resulted in the summary dismissal of Mr Welsby.

[7] Artis has not provided any submission in support of the application or provided any information which addresses the criteria of the grant of representation provided by s.596(2). Conversely the applicant has not objected to the application.

Findings

[8] In terms of s.596(2)(a), 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 the issues on the facts.

[9] In terms of s.596(2)(b) and (c) the jurisdictional hearing provided an opportunity to observe the advocacy skills of Mr Greatrex, Artis’ Managing Director. Mr Greatrex is articulate, across the factual circumstances of the case and able to put forward an argument in support of his position. I believe Mr Greatrex is able to represent Artis and it would not be unfair not to allow Artis to be represented. Further, it would be unfair to allow Artis to be represented given that Mr Welsby is unrepresented.

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

COMMISSIONER

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