Luigi De Marzi v 360 Gradi Pty Ltd T/A 360 Gradi Pizzeria and Trattoria

[2017] FWC 2645

[2017] FWC 2645

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Luigi De Marzi
v
360 Gradi Pty Ltd T/A 360 Gradi Pizzeria & Trattoria
(U2017/2335)

COMMISSIONER PLATT ADELAIDE, 12 MAY 2017

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

[1] Mr De Marzi has lodged an application pursuant to s.394 of the Fair Work Act 2009 (the Act) with respect to the termination of his employment with Vadagnini T/A 360 Gradi Pizzeria & Trattoria. The application has been listed for hearing on 31 May and 1 June 2017.

[2] The F3 Employer’s Response to the application advised that the correct name of the respondent is 360 Gradi Pty Ltd T/A 360 Gradi Pizzeria & Trattoria. I have utilised the discretion in s.586 of the Act to amend the application accordingly and have referred to the respondent as 360.

[3] By Directions issued on 12 April 2017 parties were requested to seek permission for legal representation by 4 May 2017.

[4] On 4 May 2017, 360 filed submissions seeking permission to be represented by a lawyer pursuant to s.596(2) of the Act on the basis that:

“23 Section 596(2) of the Fair Work Act 2009 (FWA) empowers the Fair Work Commission (FWC) to grant permission to be represented by a lawyer in a matter before the FWC if:

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

23.2 it would be unfair not to allow the person to be represented because the person is unable to present himself, herself, or itself efficiently, or

23.2 it would be unfair not to allow the person to be represented taking account fairness between the person and the other persons in the same matter.

24. The Respondent applies for permission pursuant to Section 596(2) of the FWA to be represented by a lawyer in this matter before the FWC on the basis that:

24.1 The matter would be dealt with more efficiently if the Respondent was represented given:

24.1.1. The Respondent was represented by lawyers from Precision Legal in the conciliation conference and they are closely aware of the facts in this matter.

24.1.2. The FWC will need to determine a jurisdictional issue. Jurisdictional issues are by their nature complex and/or require a degree of familiarity with the FWC and the case law. Further, a representative granted permission in relation to the determination of a jurisdictional issue will be familiar with the matter and, if representation is granted in relation to the substantive matter, would ensure the matter would be dealt with more efficiently than would otherwise be the case.

24.1.3. The complexity of the factual matrix that will need to be considered to determine whether the Applicant’s conduct amounted to serious misconduct and there was a valid reason for the Applicant’s dismissal. That will require a forensic cross-examination of the Applicant given the scarcity of the information in the Application and detailed consideration of the case law.

24.1.4. There are many disputed facts and a number of the matters raised in the Application will require a determination as to their relevance.

24.1.5. Mr Vadgnini, (sic) the sole director of the Respondent, is the primary witness giving evidence on behalf of the Respondent and, without legal representation, would also be required to advocate the case on behalf of the Respondent.

24.2. The Respondent would not be able to represent itself efficiently because:

24.2.1. The Respondent is a small business and does not have human resource management specialists.

24.2.2. Mr Vadagnini, the sole director of the Respondent, is from a non-English speaking background and does not have legal experience or any experience in conducting litigation and has never had any exposure to the FWC.

24.3.3 As a consequence of the matters in paragraph 24.2.2 above and without representation, the Respondent:

24.2.3.1 will be unable to present all relevant evidence and materials and to make submission in support of its case in an efficient, timely and cost effective manner, and

24.2.3.2 will face serious commercial and reputational risk.
24.2.4 (sic) The witnesses to be called are employees; two of the employees had made allegations at the centre of the dismissal, and it would be inappropriate for the Respondent to be involved given the particular obligations owed to an employee in those circumstances.

24.3 The Respondent was represented by Precision Legal during the conciliation conference and it would be unfair to prevent the Respondent from utilising those legal resources previously retained for the purposes of defending the Application.” (citations removed)

[5] Mr De Marzi has not sought permission to be represented by a lawyer or paid agent.

[6] Mr Vadagnini is the Director of 360.

[7] A further directions hearing was conducted on 8 May 2017. At that conference Mr De Marzi advised he had not been able to secure the services of a lawyer as he could not afford to do so. Mr De Marzi opposed 360’s application to be represented on the basis that he would be unfairly prejudiced.

[8] In Directions issued on 9 May 2017, Mr De Marzi was given until 12 May 2017 to advise if he sought to be represented by a lawyer or paid agent.

[9] Mr De Marzi continues to oppose the s.596(2) application made by 360.

[10] In considering this issue I have taken into account both the application (Form F2) and the employer’s response to that application (Form F3) and the submissions filed by the parties.

[11] 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.”

[12] In its submission, 360 assert that Mr De Marzi was dismissed due to serious misconduct and that the dismissal was consistent with the Small Business Fair Dismissal Code. In the alternative, 360 contend that Mr De Marzi’s conduct constituted a valid reason and that the dismissal was not harsh, unjust or unreasonable.

[13] Mr De Marzi disputes the alleged conduct, contends that he was not afforded an opportunity to respond, that the dismissal was inconsistent with the Small Business Fair Dismissal Code and harsh, unjust or unreasonable.

[14] The issues before me appear to be the determination of the relevant factual matrix and the application of the Small Business Fair Dismissal Code and s.387 of the Act to those facts.

Findings

[15] In terms of s.596(2)(a) of the Act, I have considered the extent to which a grant of 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. Whilst there are disputes as to the facts, the material before me does not establish a significant level of complexity other than determination of what occurred.

[16] In terms of s.596(2)(b) and (c) of the Act, the second directions hearing provided an opportunity to observe the advocacy skills of Mr De Marzi. Whilst Mr De Marzi has an appreciation of the facts, and is determined to clear his name, he has no experience in advocacy or the Commission’s jurisdiction.

[17] Whilst 360 contend that Mr Vadagnini is from a non-English speaking background and is not familiar with the Commission’s jurisdiction, Mr De Marzi is in the same position.

[18] 360 contend that as Mr Vadagnini is also a witness, not being granting permission to be represented would impede his ability to advocate his case, this equally applies to Mr De Marzi.

[19] In order to mitigate these concerns, I will conduct the hearing in the form of a Determinative Conference.

[20] Whilst 360 do not employ any human resource management specialists, Mr De Marzi is not represented by an employee association or any person with advocacy skills.

[21] There is no submission by 360 that Mr Vadagnini does not have the capacity to present his case.

[22] Taking into account the matters detailed above, I have reached the conclusion that it would not be unfair not to allow 360 to be represented.

[23] For the reasons set out in this decision, I am not prepared to grant permission for representation of 360 pursuant to s.596(2) of the Act.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

<Price code A, PR592903>