Dennis McDeed v SA Water Corporation

[2015] FWC 903

[2015] FWC 903

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Dennis McDeed
v
SA Water Corporation
(U2014/14544)

SENIOR DEPUTY PRESIDENT O’CALLAGHAN ADELAIDE, 6 FEBRUARY 2015

Application for relief from unfair dismissal - request for grant of permission - refused.

[1] On 24 October 2014 Mr McDeed lodged an application pursuant to s.394 of the Fair Work Act 2009 (the FW Act) in relation to the termination of his employment with SA Water Corporation (SA Water). This application has been listed for a hearing in Port Pirie commencing on 17 March 2015. This decision deals specifically with a request for a grant of permission made by Mr Love of EMA Legal to appear on behalf of the South Australian Water Corporation (SA Water).

[2] In directions I issued on 9 January 2015 I requested Mr Love to provide to the Commission and to Mr McDeed, a brief outline of the basis upon which a grant of permission was sought pursuant to s.596(2) of the FW Act. In the event that Mr McDeed objected to this request he was required to detail his position in writing.

[3] 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.”

[4] The SA Water submission addressed each of the provisions of this section of the FW Act in the following terms:

“In respect of subparagraph 596(2)(a) of the Act:

(a) it would enable the matter to be dealt with more efficiently, taking into account the complexity of the matter;

1. The matter concerns a large number of disputed allegations in relation to the conduct and behaviour of the Applicant over a period of time, which culminated in his dismissal. There are potentially a large number of witnesses, who can provide evidence relevant to the disputed allegations. In our submission, the Respondent will be assisted (and it turn the Commission) in narrowing and limiting the potential volume of relevant evidence if permission is granted for the Respondent to b e legally represented.

2. A legal representative will ensure more effective use of the Commission’s time and resources by:

a. identifying, calling and questioning witnesses on relevant matters and disputed facts only;
b. facilitating the necessary witness statements to assist the Commission in an efficient hearing.

3. The Respondent does not employ any personnel with sufficient levels of relevant tribunal experience to enable the more efficient hearing of the matter.

In respect of subparagraph 596(2)(b) of the Act:

(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;

1. It would be unfair not to allow the Respondent to have legal representation in the event that the Applicant retains legal representation.

2. The Respondent’s Human Resources Manager holds a genuine and reasonable concern about her ability to adequately represent the Respondent in this matter.”

[5] Mr McDeed expressed his position with respect to the representation issue in the following terms:

“I hereby request that the individual parties be required to represent themselves at the Hearing scheduled for 17th - 20th March 2015.

I am at a significant disadvantage against the enormous resources that SA Water has already used and can potentially use to defend its position for the following reasons:

• I suffered major economic loss as a result of Arson three years ago (criminals have not been apprehended) and this, added to my dismissal have already had a severe effect on my living standard and retirement plans.



• The significant legal fees to engage Counsel, however desirable it may be, will be a further drain on my limited resources and is not an option for me.

I believe this still leaves SA Water Human Resources Management Personnel well placed to defend their position for the following reasons:

• They are with the time available to them, the number of personnel involved, access to systems and availability of other resources in a position to have full knowledge of their case.



• I expect that they will continue to procure unlimited legal advice up to the hearing, something limited to me by finance.



• Given the last two points, a competent SA Water Manager operating in the Human Resources Area should be in an at least as good a position to defend their case as I am to defend mine.

For the above reasons I believe that I am at a great disadvantage in this case against a very large employer with huge resources. I also have limited access to any potential favourable witnesses who remain in the employment of SA Water who, no matter how unfounded such a fear may be, may be reluctant to come forward for fear of some negative outcome to them.

A favourable decision on this request would be most appreciated as I believe this is in the interest of a fairer process in these proceedings.”

[6] I have considered the representation issue on the basis of these submissions. I have noted that, in a directions conference convened on 9 January 2015, SA Water indicated that up to 20 witnesses might be called to give evidence in this matter. In the directions issued on that same day I recommended that active consideration be given to a reduction in that very large number of possible witnesses.

[7] In terms of s.596(2)(a) I am not satisfied that the content of the application is such that it gives rise to significant complexity. Further, I do not consider that a grant of permission for legal representation in any way restricts SA Water from accessing legal expertise to limit the number of witnesses to be called or the matters about which they may give evidence.

[8] Consequently, I am not satisfied, on the material provided to me, that s.596(2)(a) provides a basis upon which a grant of permission should be founded in this instance.

[9] In terms of s.596(2)(b) I have noted that SA Water is a substantial South Australian employer. I am not satisfied that SA Water has established that it is unable to represent itself effectively.

[10] In terms of s.596(2)(c) I have taken the advice from Mr McDeed as confirming that he will not seek to be legally represented. Should Mr McDeed’s position in this respect change, my conclusions about this matter will be reviewed. However, on the basis that Mr McDeed is representing himself in the matter, I am not satisfied that s.596(2)(c) provides a foundation for a grant of permission.

[11] Accordingly, the SA Water request for a grant of permission pursuant to s.596(2) is refused.

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