Fiona Petrov v City of Ballarat

[2015] FWC 7866

[2015] FWC 7866

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Fiona Petrov
v
City of Ballarat
(U2015/10751)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 17 NOVEMBER 2015

Application for relief from unfair dismissal.

[1] Ms Petrov alleges that the termination of her employment by the City of Ballarat was unfair. The City has applied for permission to be represented at the hearing by a legal practitioner or paid agent.

[2] The matter was set down for a telephone mention on 20 October 2015. Ms Petrov sought an adjournment of that mention but it was denied because at that time the matter was to be heard on 27 October 2015 and the City was entitled to know if permission was or was not going to be granted.

[3] The City objected to Ms Petrov’s application because it submitted that Ms Petrov’s position was made redundant; it complied with its obligations to consult; and Ms Petrov declined the opportunity to participate in redeployment.

[4] Ms Petrov said that her dismissal was not a genuine redundancy. She contends that she attempted to make a bullying complaint and as a result, a process was begun to remove her from the organisation. She submits that the creation of a trainee data management position means that her role was still required.

[5] The City submitted that the requirement to deal with the objection and the merits of the claim in the same hearing adds complexity and it would enable the matter to be dealt with more efficiently if a paid agent was involved. It submitted that the reduction of the matter to a one day hearing means that the need for efficiency is enhanced.

[6] The City submitted that it was not able to represent itself effectively. Ms Joanne Grainger, the Human Resources Manager, has represented the City in conciliation conferences but has not appeared in a contested matter and has not examined or cross examined witnesses. Ms Grainger’s ability to effectively represent the City is also limited because she is also a witness in the proceedings.

[7] Ms Petrov filed submissions opposing permission being granted to the City.

[8] Ms Petrov submitted that allowing legal representation does not bring a trained and orderly mind to the matter but brings confusion and manipulative tactics which would complicate a relatively straightforward matter. She submitted that in lodging her application she was seeking a discussion with her employer with the assistance of the Commission. She submitted that she does not have skills or experience in contested arbitration hearings. She submitted that permitting the City to be legally represented would further disadvantage her.

[9] Ms Petrov accepted that Ms Grainger could not effectively represent the City. She submitted that it has over 800 staff and someone must be able to represent the City.

[10] The matter before the Commission involves an allegation that the City manufactured the restructure to remove Ms Petrov from employment because she made a bullying complaint. This is a serious allegation and adds some complexity to the matters to be decided by the Commission.

[11] I do not accept Ms Petrov’s submission that permitting legal representation would complicate matters. Whilst I understand that Ms Petrov would have preferred that this matter be resolved through mediation/conciliation, that did not happen. Her application must now be heard and determined. Natural justice requires that the parties be provided with an opportunity to test the evidence of the other party. This will require the witnesses to give evidence on oath and be available to be questioned on the evidence at either a hearing or a determinative conference. I will be required to assess the evidence and determine if this was a genuine redundancy or not.

[12] I accept the submission of the City that permitting the City to be represented by a paid agent or lawyer will enable the matter to be dealt with more efficiently.

[13] Ms Petrov accepts that Ms Grainger cannot effectively represent the City. I am unable to conclude that the City has other persons who could effectively represent it.

[14] I am satisfied that the City has met the criteria set out in s.596(2)(a) and (b) of the Fair Work Act 2009 (the Act).

[15] The power to grant permission to appear is a discretionary one exercisable once one of the criteria in s.596(2) of the Act have been met. In making that decision, I have had regard to the fact that Ms Petrov is unrepresented. I accept her submission that generally an unrepresented party is at a disadvantage if the other party is represented. However, it is the role of the Commission to ensure that the unrepresented party understands the procedures and issues to be determined. The fact that one party chooses for whatever reason to represent themselves is not determinative of whether, in my discretion, I should refuse permission to appear.

[16] I am not satisfied that this is a case where I should exercise my discretion to refuse representation. Serious allegations have been made against the City by Ms Petrov. Those allegations if substantiated may impact on the reputation of the City and some of its senior staff. In those circumstances, I consider that the City is entitled to be represented. I therefore grant permission for the City to be represented by a paid agent or legal representative.

DEPUTY PRESIDENT

Appearances:

No appearance by the Applicant.

J Reid for the Respondent.

Hearing details:

2015.

Telephone mention:

October 20.

Final written submissions:

27 October 2015.

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