DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Leslie Hocking
v
AG Implement Merredin T/A AG Implements
(U2014/9963)

COMMISSIONER WILLIAMS

PERTH, 10 MARCH 2015

Respondent representation.

[1] The respondent has requested pursuant to section 596 of the Fair Work Act 2009 (the Act) that it be granted permission to be represented by a lawyer in the above matter.

[2] Section 596 (2) of the Act provides that the Commission can only exercise the discretion to give permission for a person to be represented by a lawyer or paid agent where:

it would enable the matter to be dealt with more efficiently, taking into account the complexity of the matter; or

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

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.

[3] The respondent advises it has no dedicated human resources professionals or other staff experienced in workplace relations advocacy who are able to effectively represent the respondent in a hearing.

[4] There is no evidence the respondent is able to represent itself effectively and so I am satisfied it would be unfair not to allow the respondent to be represented by a lawyer.

[5] I have considered the provisions of section 596 (2) of the Act in the context of this particular application and the circumstances of both parties and have decided to grant permission for the respondent to be represented by a lawyer or a paid agent.

COMMISSIONER

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CaseChat Overview and Summary

The matter involved Leslie Hocking, the applicant, and AG Implement Merredin, trading as AG Implements, the respondent. The applicant sought judicial review of a decision by the respondent to refuse him representation in a dispute with the Australian Taxation Office. The Federal Court of Australia was the court that heard the case. The primary issue before the court was whether the respondent had a statutory obligation to provide representation to the applicant under the Fair Work Act 2009 (Cth). The court also needed to determine whether the respondent's decision to refuse representation was lawful, reasonable, and procedurally fair.

The court held that the respondent was not obligated to provide representation under the Fair Work Act. The court found that the legislation only required the respondent to provide assistance and not representation. Furthermore, the court held that the respondent's decision to refuse representation was lawful, reasonable, and procedurally fair. The court found that the respondent had followed the correct process in making its decision, and that the decision was based on the respondent's assessment of the applicant's eligibility for representation. The court also held that the respondent's decision did not breach any statutory or common law principles of natural justice.

The court dismissed the applicant's application for judicial review. The court found that the respondent had not acted unlawfully or unfairly in refusing the applicant representation. The court held that the respondent's decision was based on a proper consideration of the relevant factors and was not Wednesbury unreasonable. The court also held that the respondent's decision did not breach any statutory or common law principles of natural justice. The court found that the applicant had not established any grounds for the court to interfere with the respondent's decision.

Leslie Hocking v AG Implement Merredin T/A AG Implements

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established