Ian Wright v Woolworths Limited

[2015] FWC 7087

[2015] FWC 7087

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Ian Wright
v
Woolworths Limited
(U2015/9737)

SENIOR DEPUTY PRESIDENT O’CALLAGHAN ADELAIDE, 14 OCTOBER 2015

Permission to be represented by a 'lawyer or paid agent' pursuant to s.596 of the Fair Work Act 2009.

[1] Mr Wright has lodged an unfair dismissal application pursuant to s.394 of the Fair Work Act 2009 (the FW Act), through his union, the Shop, Distributive and Allied Employees Association (the SDA). Mr Wright’s application has been listed for arbitration on 5 November 2015. Mr Wright’s application is made with respect to the termination of his employment with Woolworths Limited (Woolworths).

[2] In directions issued on 9 September 2015, Commissioner Wilson specified that both parties were to file in the Commission and serve on each other, by close of business Friday, 9 October 2015, any request for permission to be represented by a lawyer or paid agent at the hearing, in accordance with s.596 of the FW Act.

[3] Mr Cagney of the SDA has confirmed that, as an employee of the SDA, he will be representing Mr Wright in that capacity such that permission is not required.

[4] Mr Holland, of counsel has sought permission to represent Woolworths on the basis that he asserts that his involvement would assist in clarifying complex issues and enable the matter to be dealt with more efficiently. Mr Holland asserts that, absent such a grant of permission, Woolworths would need to be represented by the relevant Area Manager who is also a witness. Finally, he asserts that a grant of permission would not create any unfairness because Mr Cagney is an experienced lawyer. Mr Holland confirmed that Mr Wright did not object to his representation of Woolworths.

[5] Section 596(2) relevantly 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.”

[6] Whilst little information has been provided to me in support of the assertion that Mr Holland’s involvement in the matter would enable it to be dealt with more efficiently, taking into account the matter’s complexity, I have taken it that the absence of any objection to his involvement on the part of Mr Wright represent acquiescence to this view. Consequently, I consider that Mr Holland should be granted permission pursuant to s.596(2)(a).

[7] I am not satisfied that any grant of permission would be appropriate pursuant to s.596(2)(b), given the size and the resources of the Woolworths’ business.

[8] However, I consider that the requirements of s.596(2)(c) are met in these circumstances, given that Mr Wright is represented by an experienced lawyer such that it would be unfair not to allow Woolworths to be similarly represented.

[9] Permission for the representation of Woolworths by a lawyer in this matter is granted on this basis.

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