Joseph Celeste v Carisbrook Collision Repair Centre

[2014] FWC 8412

[2014] FWC 8412

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Joseph Celeste
v
Carisbrook Collision Repair Centre
(U2014/12449)

DEPUTY PRESIDENT BARTEL ADELAIDE, 25 NOVEMBER 2014

Termination of employment - representation by a lawyer.

[1] Joseph Celeste (the applicant) has filed an application for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (the Act). He contends that he was dismissed by Carisbrook Collision Repair Centre (the respondent) on 26 August 2014. The respondent contends that the applicant resigned his employment on this date.

[2] The applicant is represented by the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (the AMWU).

[3] Ms Sallie Emmett, of Kain Corporate + Commercial Lawyers, has made application that the respondent be granted permission to be represented by a lawyer. Section 596 of the Act deals with representation, and relevantly provides 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] The matter was dealt with by way of written submissions. 1 A summary of the reasons advanced by Ms Emmett is as follows:

The jurisdictional argument involves complex issues including whether the termination of employment was at the initiative of the employer and whether there was a constructive dismissal;

There are complex factual issues in determining whether any dismissal was harsh, unjust or unreasonable given the dispute over the circumstances leading to the cessation of employment;

The respondent does not have a person of experience in workplace relations advocacy, while the applicant has the benefit of union representation with experience in workplace relations advocacy; and

Representation of the respondent by an experienced legal practitioner will assist the matter being dealt with more efficiently through the presentation of a legal analysis of the relevant facts on the jurisdictional and substantive issues.

[5] Ms Alessandra Moussa, AMWU National Industrial Officer, advanced the following arguments:

The jurisdictional issue is not complex and concerns disputed facts rather than legal argument;

The respondent is not a small business employer as defined and employs senior management who would be capable of representing its interests; and

The respondent is a member of the Motor Traders Association (MTA) and has used its services in conciliation proceedings in this matter. It is open to the employer to seek the assistance of the MTA in the proceedings.

Consideration

[6] Section 596 involves the exercise of a discretionary power by the Fair Work Commission (the Commission). However, the discretion can only be exercised in favour of granting permission if one or more of the circumstances set out in s.596(2) of the Act are satisfied. 2

In relation to the arguments advanced by the respondent, I accept Ms Emmett’s submissions that the matter would be dealt with more efficiently if the respondent was represented for the reasons she has advanced. I also consider that fairness between the parties would be facilitated if the respondent was represented. While the respondent is not a small business employer, 3 there is no submission that the organisation employs a person with advocacy and/or workplace relations experience.

[7] It is also the case that the representation provisions of the Act impose no limitations on the right of parties to be represented by an industrial organisation of which the party is a member, even if the officer of the industrial organisation is a lawyer.

[8] Given the scheme of the Act regarding representation, I am not inclined to exercise my discretion to grant permission for the respondent to be represented by a lawyer in circumstances where it is able to access representation through the MTA. If for some reason the MTA is unable to represent the respondent, and in light of my findings in paragraph [7] above, permission to be represented by a lawyer will be granted.

[9] The application for an unfair dismissal remedy is listed for further directions at 10.00 am on Friday 28 November 2014, as per the previously sent listing notice. The respondent is requested to advise my Chambers and the applicant at or before this time as to whether the respondent is able to be represented by the MTA, and the decision on representation will be made accordingly.

DEPUTY PRESIDENT

 1   Respondent’s Written Submissions on Preliminary Issues, filed 13 November 2014; Applicant’s Reply Submissions on Preliminary Issues, filed 19 November 2014. Initially there was a further preliminary issue to be determined concerning the conduct of the proceedings, but this was not pursued by the respondent.

 2   See Warrell v Walton, [2013] FCA 291 at [24].

 3   According to the F3 Employer Response form, there were 26 employees employed at the time the applicant ceased employment.

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