Dennis Hopper v Goodyear and Dunlop Tyres (Australia) Pty Ltd

[2010] FWA 2550

[2010] FWA 2550

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Dennis Hopper
v
Goodyear and Dunlop Tyres (Australia) Pty Ltd
(U2009/14497)

COMMISSIONER DEEGAN CANBERRA, 30 MARCH 2010

Termination of Employment – whether legal representation should be permitted.

[1] This matter arises from an application for unfair dismissal remedy filed on 11 December 2009 pursuant to s.394 of the Fair Work Act 2009 (“the Act”) by Mr Dennis Hopper (“the applicant”) in relation to the termination of his employment by Goodyear and Dunlop Tyres (Australia) Pty Ltd (“the respondent”).

[2] The matter was conciliated on 21 January 2010. At the conciliation, the applicant was represented by a solicitor while the respondent was unrepresented. The conciliation was unsuccessful.

[3] On 2 February 2010, I held a directions conference by telephone in which both parties advised that they were unrepresented. At that conference consensus was reached as to the manner and timing of the filing of submissions and witness statements in advance of the hearing of the matter.

[4] On 16 March 2010, legal representatives on behalf of the employer filed a Form F53 – notice of representative commencing to act.

[5] On 17 March 2010, the applicant advised Fair Work Australia (“FWA”) that he opposed the respondent’s legal representation and stated in correspondence:

“I am in receipt of your emails of 16 March 2010 advising that Minter Ellison Lawyers have enclosed a "Notice of Representative Commencing to Act" on behalf of the Respondent.

Following on from our phone conversation today, I am seeking an indication from Commissioner Deegan that, on the day of the hearing, if Minter Ellison Lawyers are seeking leave to appear to represent the Respondent, what Commissioner Deegan's ruling is likely to be.

I was of the understanding that at the Teleconference on 23rd December 2009 [sic] it was agreed that Mr. Adam Grinberg would be representing the respondent at the Hearing and I would be representing myself. Understandably for the Respondent to now be legally represented places me at a significant disadvantage.

…”

[6] On 22 March 2010, a hearing was held to determine whether permission for legal representation pursuant to s.596 of the Act should be granted to the respondent. At the end of the hearing, I adjourned the hearing of the substantive application, which had been set down for 22 March to allow a decision to be made in this preliminary matter, as each party indicated that if my decision was not in their favour they would require an adjournment in order to brief other representatives to appear at the hearing.

Legislation

[7] Section 596 relevantly states:

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 FWA (including by making an application or submission to FWA on behalf of the person) by a lawyer or paid agent only with the permission of FWA.

(2) FWA may grant permission for a person to be represented by a lawyer or paid agent in a matter before FWA 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 FWA 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.

(3) FWA's permission is not required for a person to be represented by a lawyer or paid agent in making a written submission under Part 2-3 or 2-6 (which deal with modern awards and minimum wages).

(4) For the purposes of this section, a person is taken not to be represented by a lawyer or paid agent if the lawyer or paid agent:

(a) is an employee or officer of the person; or

(b) is an employee or officer of:

(i) an organisation; or

(ii) an association of employers that is not registered under the Fair Work (Registered Organisations) Act 2009 ; or

(iii) a peak council; or

(iv) a bargaining representative;

that is representing the person; or

(c) is a bargaining representative.

Submissions

[8] The respondent filed a written submission in support of the application to be permitted legal representation at the hearing.

[9] It was submitted that FWA should grant permission for the respondent to be legally represented as:

• It would aid the efficient resolution of the proceedings



• There is a complex factual matrix and disputed facts, and the proceedings will benefit from the expertise of legal representatives assisting FWA



• it would be unfair not to allow the respondent to be represented taking into account the ability of the respondent to represent itself, and the applicant having previously had legal representation in the matter.

[10] According to the respondent, more time was likely to be used if both parties were unrepresented. It was put that allowing the respondent representation would allow the matter to be proceed more efficiently. In support of this proposition the respondent relied on the Federal Court decision in Kumar v Minister for Immigration and Multicultural Affairs (No.2) 1 and the High Court decision in Cachia v Hanes.2

[11] It was noted for the respondent that the application in this matter had been set down for a one-day hearing and that four witnesses are to be called. According to the respondent this case was distinguishable from that in which Harrison C. denied legal representation to a party 3. The respondent argued that this matter was not one where there was a “relatively simple factual contest”, but a matter where there were a number of contested facts involving serious allegations made by the applicant against the respondent. The respondent required legal representation in order to present the best case possible as nobody within the company had the necessary legal expertise and experience in this type of proceeding required to adequately present the case.

[12] The respondent also relied on the fact that the applicant was legally represented at the conciliation conference to argue that it would be unfair to now prevent the respondent from being legally represented in the arbitral proceedings.

[13] The respondent’s representative noted that should the respondent be permitted legal representation for the hearing then no objection would be made to the applicant being legally represented.

[14] The applicant objected to the respondent being represented by a lawyer as he had been led to believe that neither party was to be legally represented at the hearing. He argued that to now permit the employer legal representation would put him at a significant disadvantage.

[15] The applicant submitted that, as he understood the Act, the general rule was that both parties should represent themselves, with no legal counsel present. He stated that the matter was not so complex as to require legal representation. It was also his submission that there would be no unfairness to the respondent as it has professionally trained HR people who have been aware of the facts of the matter since the incident occurred and that these people had represented the respondent at the conciliation conference.

[16] Further the applicant argued that as the maximum compensation that he could be entitled to under the Act was six months' salary he found it difficult to justify the engagement of a lawyer to assist in the resolution of the matter.

[17] The applicant also noted that he would not be pursuing the claims he made in paragraphs 45-47 of his witness statement and this might assist in convincing the respondent that legal representation was unnecessary.

[18] The applicant also advised that, should the employer be permitted legal representation, he would consider engaging a representative for the purposes of the hearing.

Consideration

Efficiency and complexity of matter

[19] On the basis of the witness statements and the submissions filed in this matter I am satisfied that the facts involved are sufficiently complex that lawyers may assist in the efficient resolution of the matter. While I am also of the view that the matter could proceed in the absence of any legal representation to a reasonably expeditious conclusion, it is likely that having one, and preferably both parties represented by legal practitioners, would speed the process.

Whether the respondent has the ability to be self represented

[20] Clearly the respondent has the capacity within the organisation to provide adequate representation in these proceedings but that representation may not be of the standard desired. Should the respondent decide to be represented by its in-house legal counsel, no objection could be taken by the applicant 4. In such circumstances the applicant would be at a similar disadvantage as he would be if the respondent is permitted to utilise outside lawyers.

Fairness

[21] The applicant was represented by a lawyer at the conciliation conference. The respondent may well have taken that fact into account when deciding to engage lawyers for the hearing of the matter. It would be unfair, in those circumstances, to prevent the respondent from making full use of the legal resources already engaged for the purpose of preparing for the hearing.

Conclusion

[22] The respondent will be permitted to be represented by a lawyer at the hearing of this application. The applicant will also be given permission to be represented by a lawyer should such an application be made.

[23] The matter will be listed for hearing at such a time as to enable the applicant to make arrangements to engage a lawyer to represent him at that hearing, should he wish to do so.

Appearances:

Applicant in person.

Ms Jessica Fletcher of Minter Ellison for the respondent.

Hearing details:

22 March 2010

 1 [2004] FCA 18.

 2 (1993) 179 CLR 403 at 415.

 3   Rodgers v Hunter Valley Earthmoving Company Pty Ltd[2009] FWA 572.

 4   Fair Work Act 2009, s.596(4)(a).

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