Jobin Nelpurackal v Cara Inc T/A Community Accomodation and Respite Agency Inc

[2015] FWC 7603

[2015] FWC 7603

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Jobin Nelpurackal
v
CARA Inc T/A Community Accomodation and Respite Agency Inc
(U2015/10331)

SENIOR DEPUTY PRESIDENT O’CALLAGHAN ADELAIDE, 5 NOVEMBER 2015

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

[1] Mr Nelpurackal has lodged an application pursuant to s.394 of the Fair Work Act 2009 (the FW Act) with respect to the termination of his employment with CARA Inc T/A Community Accommodation and Respite Agency Inc (CARA). This application is listed for a determinative conference on 8 and 9 December 2015. This decision deals specifically with the issue of representation.

[2] In directions issued on 22 October 2015 I advised:

“[3] Mr McGrath, of counsel, has foreshadowed a request for a grant of permission to represent CARA Inc T/A Community Accommodation and Respite Agency Inc (CARA). Mr McGrath is to provide to the Fair Work Commission and to Mr Nelpurackal, a brief submission detailing the basis for his request for a grant of permission within seven days. In the event that Mr Nelpurackal seeks to oppose this request, he should detail his position in a brief submission in reply, to be sent to CARA and to the Commission within a further seven days. A copy of s.596(2) of the Fair Work Act 2009 (the FW Act) is attached for the information of the parties. A decision relative to any representation issue will be provided to the parties as soon as practicable.”

[3] I have subsequently received submissions in support of a grant of representation and a submission in response from Mr Nelpurackal. In considering this issue I have taken into account both the application and the employer’s response to that application (the Form F3).

[4] 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.”

[5] In considering the request for a grant of permission now made by Ms Swift, of counsel, I have particularly noted the following information. In his application, Mr Nelpurackal refers to allegations that he made threats to kill people and bomb the employer’s property. He asserts that after he sought workers compensation in January 2015 CARA tried to force him to resign and caused him severe depression, anxiety and thoughts of self-harm. Mr Nelpurackal referred to the medical treatment and medication upon which he was placed and to disputes about what he did or said as an employee. In his application, Mr Nelpurackal asserted that his nightmares were falsely reported to the police as threats and asserted that a reason for his dismissal related to his intention to lodge a workplace bullying claim.

[6] In its response to the application CARA asserted that Mr Nelpurackal’s behaviour, including the threats to harm staff and property represented valid reasons for the termination of his employment. CARA denies that it treated Mr Nelpurackal unfairly or adversely.

[7] Ms Swift asserts that permission for representation should be granted pursuant to s.596(2)(a) because the application involves complex issues which would be able to be dealt with more efficiently if CARA was represented. Specifically, Ms Swift asserts there are significant factual disputes about the events which led to the termination of Mr Nelpurackal’s employment. Secondly, Ms Swift asserted that the application of the concept of “serious and wilful misconduct” to these circumstances will require consideration of relevant case law. Ms Swift advised that CARA intended to call for five witnesses, some of whom were involved in exchanges with Mr Nelpurackal and were significantly affected by those exchanges. If representation was not granted, Ms Swift advised that the employee who would need to represent CARA was proposed to be called as a witness and that this would create additional complexity. Ms Swift referred to concerns about the level of hostility, uncertainty and acrimony which she asserted made legal representation appropriate in these circumstances.

[8] In terms of s.596(2)(b) Ms Swift submitted that CARA did not have a person within the organisation who could effectively represent it in these proceedings.

[9] In response, Mr Nelpurackal asked that I take into account his lack of legal experience and the potential impact of the medication which he is currently taking. Mr Nelpurackal asserted that as CARA had more than 500 employees he disputed the accuracy of the assertion that it had only two officials in its Human Resources Department. Mr Nelpurackal asserted that a Mr Dillon was involved in the termination process and was competent to represent CARA. Mr Nelpurackal asserted that, as he could not afford a lawyer it would be highly unfair if CARA was so represented. Mr Nelpurackal reaffirmed his position that the termination of his employment was unfair, that he was bullied and harassed after lodging a workers compensation application and that CARA personnel had implicated him in a false police complaint. I note that Mr Nelpurackal also expressed concern that his wife was on psychiatric medication due to the stress and trauma caused by CARA.

[10] I have also noted that Ms Swift provided further material relative to the extent of the Human Resources Department within CARA. I have taken those further submissions into account.

Findings

[11] I have considered the extent to which a grant of representation should be issued on the basis that it would enable the matter to be dealt with more efficiently, because of its complexity. In this respect I have concluded that this is the case. I consider that external legal expertise would enable the CARA evidence to be presented on a less emotive basis given the allegations that CARA personnel were directly threatened by Mr Nelpurackal and were also involved in determining what action should be taken as a consequence. Consequently, the potential for emotively founded positions will be reduced if that external legal assistance is involved. Additionally, the nature of Mr Nelpurackal’s alleged threats and the legitimacy of his and CARA’s actions are likely to be complex issues which contribute to my conclusion that legal representation would enable the matter to be dealt with more efficiently. I consider there is a substantial risk that personal animosities will impact on the determination of this matter and these are best reduced by the involvement of external legal resources. On this basis I am satisfied that permission for representation by a lawyer should be granted.

[12] In terms of the second limb of Ms Swift’s submissions relative to CARA’s asserted incapacity to represent itself effectively, I have accepted that it is likely that, if CARA is required to represent itself in this matter, its representative is a person who was actively involved in the termination process. Ordinarily, this may not have represented a basis for concluding that CARA could not represent itself effectively but I have noted that the active involvement of CARA’s Executive Manager - Corporate Services in the termination of Mr Nelpurackal’s employment has the potential to limit the effectiveness of that representation. This is because it appears that the issues relating to this matter are both contentious and emotive. Notwithstanding this, I have not reached a definite conclusion on the effectiveness of representation because I simply do not have information which enables a conclusion in this regard. Given the conclusion I have reached with respect to s.596(2)(a) it is not necessary, in any event, that I determine a position relative to s.596(2)(b).

[13] Mr Nelpurackal’s concern that representation of CARA by a lawyer would represent an unfairness to him goes to s.596(2)(c). In this respect it is significant to note that s.596(2)(c) is phrased in the negative. This provision does not represent a basis upon which, in these circumstances, and having concluded that the requirements of s 596(2)(a) are met, I should refuse to grant permission for representation of CARA by a lawyer. It may then provide a basis upon which I should found a grant of permission for Mr Nelpurackal to be represented by a lawyer. I note that Mr Nelpurackal has advised that he is continuing to seek to access legal expertise in this matter.

[14] For the reasons set out in this decision, permission for representation of CARA by a lawyer is granted pursuant to s 596(2)(a). However, the submissions made by Mr Nelpurackal mean that it is appropriate that I make two further observations. Firstly, if Mr Nelpurackal is continuing to take significant medication which impacts on his capacity to participate in the proceedings in December, and if he provides medical evidence of the extent to which he is not capable of properly participating in those proceedings, I am prepared to consider an adjournment of the matter until such time as he is medically capable of participating in such a proceeding. Secondly, in the event that this matter proceeds and Mr Nelpurackal represents himself, he should be aware that he is able to ask for an opportunity to access legal advice at any point in the proceedings.

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