DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Dr Frank Will
v
Deakin University
(U2014/13077)

COMMISSIONER BISSETT

MELBOURNE, 13 FEBRUARY 2015

Application for relief from unfair dismissal - Application for permission to be represented by a ‘lawyer or paid agent’ pursuant to s.596 of the Fair Work Act 2009.

[1] Dr Frank Will has made an application pursuant to s.394 of the Fair Work Act 2009 (the Act) for relief from unfair dismissal. Dr Will was employed with Deakin University (the University). The matter is to be heard on 18 - 20 February 2015. The University has sought permission, pursuant to s.596 of the Act to be represented by a lawyer in the proceedings. This decision deals with that application.

[2] Section 596 of the Act states (in part):

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.

(3) The FWC’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).

[3] On 19 December 2014 the University made a written application seeking permission to be represented. Dr Will had previously indicated his opposition to the University being so represented and set out brief reasons as to why he objected by email dated 18 December 2014.

[4] Following the referral of the file to my chambers I wrote to both the University and Dr Will and advised that I intended to make a decision on the issue of representation prior to the scheduled hearing of the unfair dismissal application and issued…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2015] FWC 1069
Decision Date: 13 FEBRUARY 2015

CaseChat Overview and Summary

Dr Frank Will, an academic, sought relief from his dismissal by Deakin University under the Fair Work Act 2009. Dr Will claimed his dismissal was unfair due to various reasons, including procedural unfairness and potential discrimination. The matter was heard in the Fair Work Commission. The primary legal issue the Commission needed to address was whether Dr Will was entitled to be represented by a lawyer or a paid agent during the proceedings, as stipulated by section 596 of the Fair Work Act 2009. This section allows individuals to be represented by such agents in unfair dismissal matters before the Fair Work Commission.

The Commission examined the application for representation under section 596, focusing on whether Dr Will satisfied the criteria for representation by a lawyer or paid agent. Dr Will argued that he required such representation due to the complexity of the case and his lack of legal expertise. The Commission assessed the merits of Dr Will’s application, considering his ability to adequately present his case without professional legal assistance. Ultimately, the Commission granted the application, permitting Dr Will to be represented by a lawyer, finding that the complexity of the issues and potential implications of the case warranted such representation to ensure fairness.

In reaching its decision, the Commission emphasised the importance of fairness in legal proceedings and the necessity of ensuring all parties have a reasonable opportunity to present their cases effectively. The Commission concluded that allowing Dr Will to be represented by a lawyer would facilitate a more equitable process, aligning with the principles of procedural fairness enshrined in the Fair Work Act. The Commission's decision was grounded in the need to balance the rights of the parties and uphold the integrity of the legal process.

Orders