James Maiolo v Wrightville Services Pty Ltd - [2022] FWC 587

[2022] FWC 587

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

Section 394 - Application for unfair dismissal remedy

James Maiolo
v

Wrightville Services Pty Ltd

(U2021/11647)

DEPUTY PRESIDENT ANDERSON

ADELAIDE, 17 MARCH 2022

Application for an unfair dismissal remedy – representation – permission granted

This decision concerns representation in unfair dismissal matter U2021/11647.

This decision is published for two reasons. Firstly, s 601(2) of the Fair Work Act 2009 (FW Act) requires written reasons. Secondly, whilst my general practice is to provide reasons for interlocutory decisions informally by email, given the unorthodox conduct of the applicant’s representative at a directions hearing on 15 February 2022 it is appropriate to underline the serious responsibility held by representatives in proceedings before the Commission.

Background

I issued directions on 16 February 2022. These required a party seeking to be represented and requiring permission to file submissions by 8 March 2022, and any responses by 15 March 2022.

The respondent employer has sought permission.

The applicant has indicated that his representative is not a paid agent or legal practitioner and does not require permission.

Consideration

Section 596 of the 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 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…

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.

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Details

Case: [2022] FWC 587
Decision Date

CaseChat Overview and Summary

In the matter of James Maiolo versus Wrightville Services Pty Ltd, the Fair Work Commission (FWC) addressed the application for an unfair dismissal remedy. The applicant, James Maiolo, sought relief against his employer, Wrightville Services Pty Ltd, for alleged unfair dismissal. The Deputy President Anderson presided over the case in Adelaide. The Commission had to determine whether the applicant's representative, Mr Richard Swift, needed permission to represent him and whether the employer should be allowed to be represented by a legal practitioner.

The key legal issues revolved around the interpretation and application of section 596 of the Fair Work Act 2009 (FW Act), which governs the representation of parties before the FWC by lawyers and paid agents. The Court had to assess whether the criteria for granting permission under section 596(2) were satisfied in both cases, and whether the discretion, if exercised, should be in favour of granting the permission. Furthermore, the Court had to consider the implications of the applicant's unorthodox conduct and the respondent's potential application for Mr Swift's conduct to be deemed unreasonable or vexatious.

The Deputy President Anderson found that the applicant's representative, Mr Swift, did not require permission under section 596 of the FW Act as he was an unpaid agent. However, the Court granted permission for the respondent employer to be represented by a legal practitioner, as representation would enable the matter to be dealt with more efficiently, considering its complexity. The Deputy President also granted leave to the applicant to amend his F2 to reflect the correct employer's name, and the matter was listed for hearing on 19 April 2022 pending member-assisted conciliation.

The directions issued by the Court on 16 February 2022 remained unaltered by this decision. The Deputy President highlighted the importance of respecting the Commission's processes and warned against scandalous content and vexatious conduct, which could result in costs orders or other penalties under the FW Act.

Orders