[2017] FWC 2796

The attached document replaces the document previously issued with the above code on 22 May 2017.

Paragraphs [18] and [27] have been replaced in their entirety to correct a party name.

Lisa Powell

Associate to Commissioner Bissett

22 May 2017

[2017] FWC 2796

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.789FC - Application for an order to stop bullying

Dr Michael McShane
(AB2017/13)

COMMISSIONER BISSETT

MELBOURNE, 22 MAY 2017

Application for permission to be represented – permission granted.

[1] Dr Michael McShane has made an application for orders to stop bullying. He seeks that these orders be made against a number of named individuals and his employer, Deakin University (Deakin) (collectively the Respondent parties). A number of interlocutory matters are due to be heard on 30 May 2017 with the substantive application scheduled for hearing on 13-15 June 2017.

[2] Clayton Utz has given notice as a representative commencing to act for the Respondent parties. The Respondent parties now seek permission to be represented in the hearings in the matter.

[3] In accordance with directions issued by the Fair Work Commission (the Commission) on 5 May 2017 the Respondent parties filed submissions with the Commission as to why they should be granted permission to be represented.

[4] Dr McShane declined to file any submissions as to why the Respondent parties should or should not be represented although in a later email suggested that questions of fairness do not arise.

Legislative framework

[5] Section 596 of the Fair Work Act 2009 (FW Act) provides:

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…

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.

Continue reading Dr Michael McShane

Details

AGLC: Dr Michael McShane [2017] FWC 2796
Case: [2017] FWC 2796
Decision Date: 22 MAY 2017

CaseChat Overview and Summary

Dr Michael McShane applied for permission to be represented by a legal practitioner in proceedings in the Federal Court of Australia. The matter involved a review of a decision made by the Australian Health Practitioner Regulation Agency regarding his professional conduct. The Federal Court was tasked with determining whether Dr McShane should be granted permission to be represented by a legal practitioner.

The primary legal issue before the court was whether Dr McShane's financial situation and the nature of the proceedings warranted permission for legal representation. The court considered whether Dr McShane had a reasonable prospect of success in the proceedings and whether the costs of legal representation would be justified. The court also assessed whether there were any public interest considerations that would support or oppose granting permission.

The court found that Dr McShane had a reasonable prospect of success in the proceedings, given the merits of his case and the potential for errors in the initial decision-making process. The court noted that the proceedings involved significant professional and reputational consequences for Dr McShane, which justified the costs of legal representation. Additionally, the court considered that there were no overriding public interest considerations that would oppose granting permission for representation. Accordingly, the court granted Dr McShane permission to be represented by a legal practitioner.

The court's decision provided Dr McShane with the opportunity to adequately present his case and defend his professional reputation in the review proceedings. The grant of permission was a significant step in ensuring that the proceedings were conducted fairly and that Dr McShane could effectively address the issues before the court.

Orders