Glen O'Hanlon v Alinta Energy Flinders Operating Services Pty Ltd T/A Alinta Energy

[2014] FWC 8681

[2014] FWC 8681

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Glen O’Hanlon
v
Alinta Energy Flinders Operating Services Pty Ltd T/A Alinta Energy
(U2014/12616)

SENIOR DEPUTY PRESIDENT O’CALLAGHAN ADELAIDE, 3 DECEMBER 2014

Application for relief from unfair dismissal - representation granted.

[1] Mr O’Hanlon has made an application pursuant to s.394 of the Fair Work Act 2009 (the FW Act) with respect to the alleged termination of his employment with Alinta Energy Flinders Operating Services Pty Ltd T/A Alinta Energy (Alinta). That application has been listed for a hearing on 6 February 2015. This decision deals with a request for a grant of permission, pursuant to s.596(2) of the FW Act, made by Mr Short, of counsel so as to represent Alinta.

[2] Mr O’Hanlon’s application was the subject of a telephone directions conference on 20 November 2014. In that conference, Mr Starke, of counsel participated on behalf of Mr O’Hanlon but advised that he could not confirm whether he would be instructed to represent Mr O’Hanlon on an ongoing basis. The Directions issued following that conference reflected the agreed position with respect to the representation issue. These Directions stated:

“Mr Short, of counsel has indicated that a grant of permission pursuant to s.596 will be sought to enable him to represent the respondent in this matter. Mr O’Hanlon has yet to determine if he will seek to be legally represented but has undertaken to advise Mr Short by close of business 27 November 2014 if Mr Short’s request is to be opposed. In that event Mr Short will provide, within seven days, a brief written submission detailing the reasons why a grant of permission is requested and Mr O’Hanlon is to provide a brief written submission in response within a further seven days. I may determine the representation issue on the basis of this material.” 1

[3] On 2 December 2014 Mr O’Hanlon provided advice to me in the following terms:

“I am unable to pay solicitors. I have no income and there is no currently entitlement to Centrelink.

I oppose Mr Short representing the employer. ....”

[4] A similar advice was sent to Mr Short around the same time.

[5] Mr Short provided written submissions in support of the Alinta request for a grant of permission for legal representation. Those submissions commenced from the premise that Mr O’Hanlon had not complied with the specified timetable but, as an alternative position asserted that permission should be granted pursuant to s.596(2)(a) on the basis that it would enable the matter to be dealt with more efficiently, taking into account the complexity of the issues involved. The Alinta submissions asserted that the application raised issues associated with whether Mr O’Hanlon was dismissed at all and, if so, the operation of the Alinta drug testing regime and issues of fairness.

[6] 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.”

[7] I consider that a grant of permission pursuant to s.596(2)(a) is appropriate in these circumstances. I am satisfied that legal representation will enable more efficient consideration of issues associated with whether Mr O’Hanlon was indeed dismissed at the initiative of the employer. On the limited material before me, I am satisfied that this issue has the potential to raise some questions of complexity. Further, should the operation of the Alinta drug testing regime need to be considered, I am satisfied that this issue, which has been the subject of substantial consideration in other matters before the Fair Work Commission will also be able to be dealt with more efficiently through that legal representation.

[8] In the event that Mr O’Hanlon requests a brief adjournment in the course of the hearing in this matter so as to obtain legal or professional advice on matters raised with or by the Alinta legal representative, I confirm that I am prepared to consider any such request.

[9] Permission for legal representation pursuant to s.596(2)(a) is granted on this basis.

 1   FWC Directions dated 24 November 2014, para [3]

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