Lance Norrie v Craig Arthur Pty Lyd

[2017] FWC 645

[2017] FWC 645

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Lance Norrie
v
Craig Arthur Pty Lyd
(U2016/13704)

SENIOR DEPUTY PRESIDENT O’CALLAGHAN ADELAIDE, 31 JANUARY 2017

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

[1] Mr Norrie 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 Craig Arthur Pty Ltd (Craig Arthur). This application is listed for a determinative conference on 20-23 February 2015. This decision deals specifically with the issue of representation.

[2] In directions issued on 6 January 2017 I advised:

“[2] In the event that either party seeks a grant of permission to be represented by a lawyer or paid agent, a brief submission setting out the basis upon which that permission is requested should be provided to the Commission and to the other party by close of business 16 January 2017. If a request for permission is to be opposed, a brief submission to this effect must be provided to the Commission and to the other party by close of business 21 January 2017. In this event, and in this event only, a decision on the disputed issue of representation will be provided to the parties as soon as possible after 23 January 2017. I have attached a copy of s.596(2) of the Fair Work Act 2009 (the FW Act) which deals with the issue of representation.”

[3] I have subsequently received submissions from Mr Kelemen seeking a grant of permission to represent Mr Norrie and a submission in response from Craig Arthur. 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

(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.”

[5] In his application, Mr Norrie asserts that there was no valid reason for the termination of his employment and that this termination occurred in a procedurally unfair manner. In its belated response to the application, Craig Arthur asserts that the termination of Mr Norrie’s employment occurred because he was unable to perform the required role and he had not complied with reasonable and lawful directions and company procedures and policies. Further, that the termination of Mr Norrie’s employment was not procedurally unfair.

[6] Mr Kelemen asserts that permission for representation should be granted pursuant to s.596(2)(a) because a representative experienced in this jurisdiction will be able to assist the Commission to ensure that it had the most reliable information before it to decide the issues in the case. I have also noted that Mr Kelemen referred to a number of authorities dealing with the issue of representation. I have taken those authorities into account.

[7] In response, Craig Arthur opposed the request for a grant of permission on the basis that it did not have legal representation. Craig Arthur asserted that the matter was not complex and that Mr Kelemen’s dealings with it to date, have not been conducive to the efficient resolution of the matter. In a somewhat curious final position, Craig Arthur advised that, if permission was granted to Mr Kelemen, it will also seek to be legally represented

Findings

[8] I have considered the extent to which a grant of permission for representation should be issued on the basis that it would enable the matter to be dealt with more efficiently, because of its complexity. I am not satisfied that this is the case. The material before me does not establish a significant level of complexity other than determination of this issue on the facts.

[9] Mr Kelemen’s submissions relative to the issue of representation do not give any indication that the involvement of a lawyer or paid agent would assist in the efficient resolution of the matter.

[10] In reaching a conclusion about this issue, I have not taken into account the extent to which I consider that Mr Kelemen has, on various other occasions, failed to properly represent his clients in matters of this nature or has withdrawn from his involvement in matters involving arbitration shortly before the matter proceeds. Those concerns relate to Mr Kelemen’s personal record rather than the broader issue of representation by a lawyer or a paid agent.

[11] For the reasons set out in this decision, I am not prepared to grant permission for representation of Mr Norrie by a lawyer or paid agent pursuant to s.596(2).

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