Francis Logan v Bendigo Health Care Group

[2016] FWC 6363

[2016] FWC 6363

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Francis Logan
v
Bendigo Health Care Group
(U2016/7692)

COMMISSIONER RYAN MELBOURNE, 7 SEPTEMBER 2016

Application for relief from unfair dismissal - permission to be represented by a paid agent or lawyer - permission granted.

[1] The Applicant and the Respondent have sought permission under s.596(2) to be represented by a lawyer or paid agent at the hearing of this matter to be held on 12 and 13 September in Bendigo.

[2] Both parties have filed written submissions in support of their respective applications.

[3] The relevant provision of the Act is s.596 which is as follows:

“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).

(4) For the purposes of this section, a person is taken not to be represented by a lawyer or paid agent if the lawyer or paid agent:

(a) is an employee or officer of the person; or

(b) is an employee or officer of:

(i) an organisation; or

(ii) an association of employers that is not registered under the Registered Organisations Act; or

(iii) a peak council; or

(iv) a bargaining representative;

that is representing the person; or

(c) is a bargaining representative.”

Section 596(2)(a)

[4] I accept the submissions of the Applicant and Respondent in relation to s.596(2)(a) and find that legal representation would enable the matter to be dealt with more efficiently, taking into account the complex factual matrix raised by the witness statements filed by each of the parties, as well as the legal questions to be determined under the Act.

Section 596(2)(b)

[5] The Applicant in support of permission being granted pursuant to s.596(2)(b) contends that:

“Having regard to section 596(2)(b) of the FW Act, it would be unfair not to allow the Applicant to be represented as he is unable to represent himself effectively. In CEPU v UGL Resources Pty Limited (Project Aurora), Senior Deputy President Richards commented that the Commission is likely to grant permission where the matter creates a ‘striking impression’, ‘impressive effect’ or is ‘powerful in effect’. The Applicant has never been involved in proceedings within the Fair Work Commission nor is he familiar with the legal authorities that are likely to be raised during this matter. Further, the financial and personal impact that the dismissal has had on the Applicant also affects his ability to think objectively and represent himself effectively. In the circumstances, allowing the Applicant to be represented would ensure the matter would be dealt with more effectively than would otherwise be the case.”

[6] I do not accept the first part of that submission which relies upon the findings in CEPU v UGL.

[7] The issue posed by s.596(2)(b) is whether the party seeking permission to be represented is unable to represent itself effectively. The two words of importance in this provision are “unable” and “effectively”.

[8] The Macquarie Dictionary 6th edition defines “unable” as follows:

unable adj. not able (to do something); lacking ability or power (to do something); weak; impotent.

[9] The Macquarie Dictionary 6th edition defines “effective” as follows:

effective, adj. 1. serving to effect the purpose; producing the intended or expected result: effective measures; effective steps towards peace. 2. actually in effect: the law becomes effective at midnight. 3. producing a striking impression; striking: an effective picture. n. 4. a soldier or sailor fit for duty or active service. 5. the effective total of a military force. -effectively, adv

[10] The Oxford English Dictionary, 2nd edn, Volume III, defines ‘effectively’ as follows:

Effectively, adv
1. As a means of causing or producing
2. a. By a direct exercise of power. b. With regard to the effects. (chiefly Theol.) Obs
3. = In effect a. Actually, in fact (obs) b. Virtually, substantially.
4. So as to produce an effect. Often emphatically: With powerful effect; decisively, completely.
5. In a manner fit for service.

[11] It would appear that the plain meaning of the s.596(2)(b) is whether the party seeking permission to be represented is lacking ability or power to represent itself so as to produce the intended or expected result.

[12] I note that a decision of Richards SDP in CEPU v UGL Resources Pty Ltd (Project Aurora) at [16] and [17], and followed by Williams C in Oliveira et or v The Trustee for Clipper Pearls Unit Trust T/a Clipper Pearls P/L, sets a higher bar for being represented effectively. However, I am of the view that the plain words of s.596(2)(b) do not require representation “that creates a “striking impression”, or which has an “impressive” effect or which is “powerful in effect”.

[13] Setting the bar so high for effective representation is a bar that most experienced industrial advocates and lawyers may find too high.

[14] In applying the plain meaning to s.596(2)(b), I accept the second part of the Applicant’s submissions and find that the Applicant could not represent himself effectively.

[15] The Respondent in support of permission being granted pursuant to s.596(2)(b) contends that:

“4. Further, it is submitted that in accordance with section 596(2)(b) of the Act, it would be unfair not to allow the Respondent to be represented. Although the Respondent has a People and Culture team, it does not have employees with the experience, expertise or significant involvement with proceedings in this Commission to enable them to conduct the hearing on its behalf.

5. We further note that neither Ms Andrea Noonan (Executive Director of People and Culture), nor her direct report Ms Hannah Atkins (Advisor) would be in a position to conduct any proceedings on behalf of the Respondent, because Ms Noonan and Ms Atkins were involved in the investigation and decision to terminate the Applicant's employment. As such, Ms Atkins will be a witness in the proceeding and will give evidence of the approval to terminate the Applicant's employment given by Ms Noonan.”

Conclusion

[16] Permission is granted to the Applicant and to the Respondent to be legally represented at the hearing pursuant to s.596(2)(a) and (b).

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