Mark Hoklas v Richmond Grove Wines T/A Orlando

[2012] FWA 4011

[2012] FWA 4011

FAIR WORK AUSTRALIA

REASONS FOR DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Mark Hoklas
v
Richmond Grove Wines T/A Orlando
(U2011/2587)

SENIOR DEPUTY PRESIDENT O’CALLAGHAN ADELAIDE, 10 MAY 2012

Termination of Employment - grant of permission.

[1] Mr Hoklas has lodged an application pursuant to s.394 of the Fair Work Act 2009 (the FW Act) he contends that the termination of his employment with Richmond Grove Wines trading as Orlando (Orlando) was unfair. That application is listed for hearing over three days commencing on 16 May 2012.

[2] On 9 May 2012 I convened a telephone hearing to consider a disputed issue relative to a grant of permission and other programming issues. This decision reflects a subsequent request from Mr Dean of United Voice, representing Mr Hoklas, for the reasons for my decision to grant permission to Mr Martin of counsel to represent Orlando.

[3] Mr Martin argued that a grant of permission was appropriate in the circumstances of this matter on the following broad grounds:

• the matter is said to be complex, involving 13 witnesses and potentially complex cross-examination



• The matter may turn on issues of credit



• Differing approaches to the consideration of whether there was a valid reason for the termination of Mr Hoklas’ employment are likely



• There may be differences about the onus and standard of proof required



• The officer responsible for the management of the matter within Orlando has a legal qualification but has limited workplace relations experience and exposure and is, in any event, overseas at the relevant time



• In contrast, Mr Dean is a legally trained and qualified industrial officer of a substantial union.

[4] Mr Dean’s position was that a grant of permission should not be made because the respondent is a substantial employer with in-house legal expertise. Mr Dean argued that the matter was not so complex so as to be outside of the capacity of the respondent’s in-house expertise.

[5] Mr Dean referred me to the Explanatory Memorandum insofar as it dealt with s.596 and argued that the refusal of the permission sought by Mr Martin would be consistent with the function of that section. He also referred me to a number of authorities which he asserted supported his position that permission should not be granted to Mr Martin.

[6] Having considered these submissions in the context of the substantial submissions and written witness statements provided to me in preparation for this hearing, I determined that a grant of permission should be made to Mr Martin. My reasons for doing so follow.

[7] Section 596 of the FW 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 FWA (including by making an application or submission to FWA on behalf of the person) by a lawyer or paid agent only with the permission of FWA.

(2) FWA may grant permission for a person to be represented by a lawyer or paid agent in a matter before FWA 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 FWA 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) FWA’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).

(4) For the purposes of this section, a person is taken not to be represented by a lawyer or paid agent if the lawyer or paid agent:

(a) is an employee or officer of the person; or

(b) is an employee or officer of:

(i) an organisation; or

(ii) an association of employers that is not registered under the Fair Work (Registered Organisations) Act 2009; or

(iii) a peak council; or

(iv) a bargaining representative;

that is representing the person; or

(c) is a bargaining representative.”

[8] In CEPU v UGL Resources Pty Ltd (Project Aurora) 1 Richards SDP examined the operation of this section of the FW Act. That approach provides useful guidance in the consideration of whether a grant of permission might enable a matter to be dealt with more efficiently.

[9] The SDP concluded:

“[21] Generally, in determining the existence of the prescribed precondition(s) (along with the other requirements of s.596(2)(b) of the Act), the totality of the observed circumstances will be important, as will the genuineness of any asserted belief that is said to be held.”

[10] I am satisfied that each of the other authorities to which I have been referred require consideration of the particular circumstances of the case. As Commissioner Harrison said in Rodgers v Hunter Valley Earthmoving Company Pty Ltd: 2

“[12] In practice the Tribunal would usually grant permission in formal proceedings, however, where a party raises an objection, the discretion afforded to the Tribunal will be exercised on the facts and circumstances of the particular case.”

[11] In terms of Mr Hoklas’ application, I am satisfied that the hearing is likely to involve some 13 witnesses such that efficiency of the hearing process is significant. The evidence proposed to me has the potential to raise a range of evidentiary issues. I am satisfied that the submissions may give rise to some conjecture relative to the determination of whether there was a valid reason for the termination of Mr Hoklas’ employment.

[12] I am satisfied that Orlando has internal legal expertise. However, I have noted Mr Martin's advice that its internal legal counsel has limited workplace relations experience and may not be in Australia for at least part of the hearing.

[13] I have noted that Mr Martin has substantial experience in this jurisdiction and have concluded that he would be better placed than the internal personnel within Orlando to facilitate the effective conduct of the matter in these circumstances.

[14] Accordingly, I concluded that the grant of permission was appropriate pursuant to s.596(2)(a). To the extent that it is a necessary element of such a grant under this subsection, I have noted that Mr Hoklas is represented by Mr Dean whom I understand to be legally trained and qualified such that I do not consider that the grant of permission to Mr Martin imposes unfairness on Mr Hoklas.

[15] To the extent that it is necessary that I do so, I reaffirm my invitation to Mr Dean to request a brief adjournment in the course of the proceedings in the event that he considers it necessary to obtain specialist legal advice on a particular issue.

SENIOR DEPUTY PRESIDENT

 1   [2012] FWA 2966

 2   [2009] FWA 572

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