John Begovic v Toll Pty Ltd T/A Toll Contract Logistics

[2014] FWC 3897

[2014] FWC 3897

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009
s.394—Unfair dismissal

John Begovic
v
Toll Pty Ltd T/A Toll Contract Logistics
(U2013/17249)

DEPUTY PRESIDENT BOOTH SYDNEY, 12 JUNE 2014

Termination of employment - application for an unfair dismissal remedy - s.596 of the Fair Work Act 2009.

[1] Mr John Begovic was employed as an Operations Supervisor with Toll Pty Ltd T/A Toll Contract Logistics (Toll) until he was dismissed for serious misconduct without notice on 27 November 2013. It is alleged that Mr Begovic acted dishonestly and misled Toll in failing to disclose prior medical particulars when completing a pre-employment medical form. Mr Begovic denies the allegation and has made an application pursuant to s.394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy. Mr Begovic contends that he did not complete the relevant section of the pre-employment medical form and that he did not withhold personal medical information from Toll when he applied for employment.

[2] The matter is listed for hearing before the Fair Work Commission (the Commission) in Tamworth on 7-10 July 2014. Mr Begovic is self-represented. Toll has sought permission to be represented by a lawyer pursuant to s.596 of the Act. Mr Begovic opposes this application. Both parties have made submissions in relation to the application. On 4 June 2014 I declined the application and indicated that I would provide my reasons as soon as possible. This decision contains my reasons.

[3] In making my decision I must exercise my discretion pursuant to s.596 of the Act which reads 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 employersthat 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.

[4] In support of their application Toll say, in effect, that the application presents factual complexity because the factual basis for the reason for their decision to terminate the employment of the applicant is contested and will be the subject of witness evidence. They also say, in effect, that there is legal complexity in the matter because the termination of the applicant's employment was on a summary basis which will require the Commission to consider and apply the principles applying to summary termination. They contend that arising from this complexity Toll would not be able to represent itself effectively without the engagement of an experienced solicitor. They assert that Mr Begovic has had a solicitor acting for him in these proceedings and it would be unfair not to allow Toll to be represented by a lawyer taking into account fairness as between Mr Begovic and Toll.

[5] Mr Begovic disagrees that the matter is complex and advises that whilst he did file advice of representation on 20 February 2014 the solicitor has not undertaken any work in relation to the matter and he will not be represented at the hearing of this mater. He says that Toll is a very large company which employs its own human resources and legal staff and that in such circumstances it would not be unfair for Toll to be required to represent themselves in the hearing.

[6] The factual conflict between the parties is the key consideration in this matter. Toll is not a small business employer and I will be called upon to determine, on the balance of probabilities, which account of the facts concerning disclosure of Mr Begovic’s prior medical condition is correct before I consider the matters I am required to consider pursuant to s.387 of the Act. In this circumstance there is factual discrepancy but not factual complexity.

[7] I do not agree with the submission that there is legal complexity in the matter because the termination of Mr Begovic’s employment was on a summary basis. My role is not to determine whether the termination of Mr Begovic’s employment should have been on a summary basis but whether it was unfair. In so deciding I must consider the matters outlined in s.387 of the Act. This does not make this case particularly legally complex.

[8] Toll is a large company with significant internal resources and experience dealing with matters of this nature. Given this I cannot conclude that it would be unfair not to allow Toll to be represented by a lawyer taking into account fairness as between Mr Begovic and Toll.

[9] The application by Toll to be represented by a lawyer pursuant to s.596 of the Act is declined.

DEPUTY PRESIDENT

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