Kimiko Schneider v Republic Theatres Darwin Pty Ltd T/A Cmax Cinema

[2017] FWC 610

[2017] FWC 610

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Kimiko Schneider
v
Republic Theatres Darwin Pty Ltd T/A CMAX Cinema
(U2016/14404)

SENIOR DEPUTY PRESIDENT O’CALLAGHAN ADELAIDE, 30 JANUARY 2017

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

[1] Ms Schneider has lodged an application pursuant to s.394 of the Fair Work Act 2009 (the FW Act) with respect to the termination of her employment with Republic Theatres Darwin Pty Ltd T/A CMAX Cinema (CMAX Cinema). This application is listed for a determinative conference on 17 February 2017. This decision deals specifically with the issue of representation.

[2] In directions issued on 13 January 2017 I advised:

“[2] In the event that either party seeks to be represented by a lawyer or paid agent, a brief submission detailing the basis of that request is to be provided to the Commission and to the other party by close of business 23 January 2017. Any opposition to such a request is to be set out in a brief submission which is to be provided to the Commission and to the first party by close of business 30 January 2017. In that event, and in that event only, a decision dealing with the disputed issue of representation will be provided as soon as possible after 30 January 2017. I have attached a copy of s.596(2) of the FW Act which deals with the issue of representation.”

[3] I have subsequently received submissions in support of a grant of representation and a submission in response from Ms Schneider. 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 made by Ms Bradbrook, of counsel, I have particularly noted the following information. In her application, Ms Schneider asserts that she was not given any reason for her dismissal and she attributed her dismissal because her husband was selling his share of the business to Mr Todd of CMAX Cinema and Mr Todd no longer wished to have her as an employee.

[6] In its response to the application CMAX Cinema asserted that the termination of Ms Schneider’s employment was a case of genuine redundancy.

[7] Ms Bradbrook asserts that permission for representation should be granted pursuant to s.596(2)(b) because CMAX Cinema could only be represented on an in-house basis, by Mr Todd, as its Managing Director. Further, that Mr Todd has been diagnosed with a post-traumatic stress disorder as a result of a workplace death in 2012. Mr Todd relies on medication and his doctor has provided a medical report, dated 17 January 2017 which indicates that he could suffer a further worsening of his condition if he was required to represent himself in this matter. A copy of that report has been provided to me.

[8] Presumably, in terms of s.596(2)(a), Ms Bradbrook submitted that her involvement would enable the matter to proceed more efficiently.

[9] In response, Ms Schneider asked that I take into account her lack of legal experience and her unrepresented position. She advised that English was her second language and that she had difficulty understanding what Ms Bradbrook was saying. Ms Schneider asserted that the matter did not involve any difficult points of law, that she had not seen a medical report but was aware that Mr Todd was currently running his business and understood that someone else from that business could represent the respondent.

Findings

[10] I have considered the extent to which a grant of representation should be issued on the basis that Mr Todd is unable to represent CMAX Cinema effectively. I am satisfied that, as the Managing Director of a relatively small business, Mr Todd would be the logical person to represent his business unless permission for legal representation is granted, and that the medical evidence before me establishes that this could have an adverse effect on his health. Consequently, I am satisfied that the requirements of s.596(2)(b) are satisfied in this instance such that permission for representation should be granted to Ms Bradbrook. I am also satisfied that a grant of permission pursuant to s.596(2)(b) would enable the matter to be dealt with more efficiently, because of the complex relationship between Mr Todd, Ms Schneider and, it seems, her husband. In this respect I have concluded that external legal expertise would enable the CMAX Cinema evidence to be presented on a less emotive basis. I consider there is a substantial risk that apparent personal animosities will impact on the determination of this matter and these are best reduced by the involvement of an external legal resource. Accordingly, I have determined that permission for representation by a lawyer should be granted.

[11] Ms Schneider’s concern that representation of CMAX Cinema by a lawyer would represent an unfairness to her appears to go 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) and (b) are met, I should refuse to grant permission for representation of CMAX Cinema by a lawyer. This section may then provide a basis upon which I should found a grant of permission for Ms Schneider to be represented by a lawyer should she so wish. Whilst not pertinent to this issue, I am not persuaded that Ms Schneider would be any less likely to understand Ms Bradbrook than she would Mr Todd. If Ms Schneider seeks that the Commission should arrange an interpreter, for the conference on 17 February 2017, she should make a request to this effect to my office at least one week before that conference. Notwithstanding this, Ms Schneider should be aware that, if she does not understand any of the conference proceedings, she can seek clarification about those matters in the course of the conference.

[12] For the reasons set out in this decision, permission for representation of CMAX Cinema by a lawyer is granted pursuant to s.596(2)(a) and, most significantly, (b).

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