Lindy Smith v Ecolab Pty Ltd

[2016] FWC 6351

[2016] FWC 6351

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Lindy Smith
v
Ecolab Pty Ltd
(U2016/7804)

COMMISSIONER BISSETT MELBOURNE, 6 SEPTEMBER 2016

Application for permission to be legally represented - – permission granted..

[1] Ms Lindy Smith has made an application to the Fair Work Commission (Commission) seeking relief from unfair dismissal pursuant to s.394 of the Fair Work Act 2009 (the Act).

[2] Ecolab Pty Ltd (Ecolab) and Ms Smith have both sought permission to be represented by a lawyer or paid agent.

[3] Section 596 of the Act 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.

(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).

Complexity

[4] I have considered the material filed by the parties in the substantive matter and their submissions on permission. I am aware of the substance of many of the matters that will be dealt with in examination in chief and cross-examination during the hearing and the wide disparity in material filed by each party as to the purported facts.

[5] Whilst on its face the application for unfair dismissal may not seem to be of any complexity, I am satisfied that the subject matter of many of the issues that will arise does lend a level of complexity bearing on how the matter is handled in the hearing.

[6] Despite the rather unusual submission from Mr Dirks for Ms Smith, who himself is seeking permission, that the grant of permission to a lawyer or paid agent such as himself often does not result in a matter being dealt with more efficiently, I am satisfied in this case that the grant of permission to Ecolab will enable the matter to be dealt with more efficiently.

Fairness

[7] If I do grant permission to Ecolab, I am satisfied that it would be unfair not to allow Ms Smith to be represented.

Conclusion

[8] The decision to grant permission for a party to be represented is a two-step process. First, one of the requirements in s.596(2) of the Act must be met. I am satisfied that the requirements of s.596(2)(a) have been met. Given the nature of matters that may arise during the hearing of the matter I am satisfied that it is appropriate that permission be granted to Ecolab.

[9] In these circumstances, I am also satisfied that permission should be granted to Ms Smith to be represented.

[10] Permission is therefore granted to Ecolab and Ms Smith to be represented.

COMMISSIONER

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