Dorin Viespescu v Jaydec Construction Pty Ltd

[2016] FWC 2655

[2016] FWC 2655

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Dorin Viespescu
v
Jaydec Construction Pty Ltd
(U2016/4508)

SENIOR DEPUTY PRESIDENT O’CALLAGHAN ADELAIDE, 28 APRIL 2016

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

[1] Mr Dorin Viespescu 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 Jaydec Constructions Pty Ltd (Jaydec). This application is listed for a determinative conference on 12 May 2016. I note that a Romanian interpreter has been arranged for this determinative conference. This decision deals specifically with the issue of representation.

[2] In directions issued on 6 April 2016 I advised:

“[4] Mr Dorin Viespescu has advised that he will be representing himself. If Jaydec Constructions Pty Ltd seeks to be represented by a lawyer or a paid agent, a request for a grant of permission to enable this must be made in writing by 21 April 2016. This should be in the form of a brief written submission which addresses the factors in s.596(2) of the Fair Work Act 2009 (the FW Act). If Mr Dorin Viespescu opposes this request, he is to provide a brief submission in response by 28 April 2016. A copy of s.596(2) is attached. If permission is disputed, a decision in this respect will be provided as soon as possible.”

[3] Subsequent to the directions conference on 6 April 2016 Mr Dorin Viespescu advised that he would not be attending the conference as his visa had expired and he was returning to Romania. Mr Dorin Viespescu advised that he wished to participate in the determinative conference on 12 May 2016 by telephone and that he would be represented by an associate, Mr Nicholas.

[4] I have subsequently received a submission in support of a grant of representation from Ms D’Silva, of counsel and a submission in response from Mr Dorin Viespescu. In considering this issue I have taken into account both the application and the employer’s response to that application (the Form F3).

[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 Dorin Viespescu asserts his dismissal was procedurally unfair and lacked a valid reason. In its response to the application Jaydec asserted that the dismissal was a case of genuine redundancy and that it was a small business and properly applied the Small Business Fair Dismissal Code. A further assertion related to the extent to which the termination of Mr Dorin Viespescu’s employment was at the initiative of the employer. I note that, in a decision 1 issued on 4 March 2016, Deputy President Gooley extended at the time for lodgement of Mr Dorin Viespescu’s application.

[7] Ms D’Silva asserts that permission for representation should be granted pursuant to s.596(2)(b) because Mr Emil Viespescu, who is related to Mr Dorin Viespescu has very limited English and has difficulty in understanding the concepts and requirements involved in this matter.

[8] In response, Mr Dorin Viespescu asserted that Mr Emil Viespescu had previously been involved in proceedings with him in the Fair Work Commission without the benefit of legal representation and that these earlier proceedings had resulted in a signed settlement agreement. Mr Dorin Viespescu asserted that he would be unfairly prejudiced if Mr Emil Viespescu was legally represented and that he also had a limited knowledge of English and understanding of Australian employment law. Mr Dorin Viespescu submitted that language and communication difficulties were most appropriate addressed through the services of the interpreter which had been arranged.

Findings

[9] I have initially considered the extent to which the requirements in s.596(2)(a) are met in this situation. Whilst no specific submissions were made to me in this respect, 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. Whilst the material before me does not establish a significant level of complexity other than determination of, firstly the jurisdictional objections, and potentially, the merits of this issue on the facts. I have concluded that the complexities arise from the extent to which an earlier unfair dismissal application was made by Mr Dorin Viespescu and was apparently resolved. The extent of that resolution may well be disputed. Further, the determination of Small Business Fair Dismissal Code and redundancy issues assume a measure of complexity in this circumstance where there appears to be both language and employment law understanding issues. Because of these issues, I am satisfied that a grant of permission should be issued pursuant to s.596(2)(a).

[10] In terms of s.596(2)(b) relative to Jaydec’s asserted incapacity to represent itself effectively, through Mr Emil Viespescu, I am satisfied that it would be unfair not to allow representation given the circumstances under which Mr Dorin Viespescu’s first unfair dismissal application, in November 2015, was not satisfactorily resolved. I have concluded that issues of understanding of the law are significant in this matter. I have reached this conclusion, having taken into account the access which the Fair Work Commission will provide to a Romanian interpreter service. Consequently, I do not think that language issues alone determine this representation issue.

[11] In reaching a conclusion about representation, I have had particular regard to issues of fairness between Mr Dorin Viespescu and Mr Emil Viespescu. My decision is not founded on the extent to which Mr Dorin Viespescu has a friend representing him and I have not applied s.596(2)(c) as the basis for such a grant of permission. It is simply the case that the circumstances and relationships apparent here mean that I have concluded that Ms D’Silva’s involvement would expedite the efficiency of the matter and is likely to assist in representation of Jaydec.

[12] At the commencement of the determinative conference on 12 May 2016 I will detail arrangements which are intended to ensure that both parties have the opportunity to obtain advice and assistance with respect to this matter so as to reaffirm the Fair Work Commission’s objective of ensuring fair and equitable determination of the matter.

[13] For the reasons set out in this decision, I am prepared to grant permission for representation of Jaydec by a lawyer pursuant to s.596(2)(a) and (b).

 1   [2016 ] FWC 1318

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