Mark Reidy v Australian Rail Track Corporation

[2015] FWC 5243

[2015] FWC 5243

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Mark Reidy
v
Australian Rail Track Corporation
(U2015/7545)

SENIOR DEPUTY PRESIDENT O’CALLAGHAN ADELAIDE, 3 AUGUST 2015

Application for relief from unfair dismissal – grant of permission – refused.

[1] This decision deals with a request for a grant of permission made by Mr Reaburn, of counsel, to represent Australian Rail Track Corporation Limited (ARTC) in the determination of an unfair dismissal application brought by Mr Reidy pursuant to s.394 of the Fair Work Act 2009 (the FW Act). The request for a grant of permission is made pursuant to s.596(2).

[2] Mr Reidy’s application was the subject of a telephone directions conference on 23 June 2015. In that conference, Ms Murphy, of counsel advised that she was appearing for him, but that he was yet to decide whether he would seek to be legally represented in the determination of the merits of the matter. Mr Reaburn foreshadowed a request for a grant of permission to represent ARTC. My Directions of that date stated:

“[2] I note that whilst Ms Murray, of counsel represented Mr Reidy at the directions conference held today in this matter, Mr Reidy has not yet determined whether he will seek to be legally represented at the determinative conference. Ms Murray has agreed that Mr Reidy will provide advice about whether he seeks to be legally represented to my office, with a copy to Mr Reaburn of Henry Davis York Lawyers, by close of business 7 July 2015. In the event that Mr Reidy does not seek to be legally represented, further advice will be provided to the parties. That advice will invite the provision of brief written submissions on the issue of representation.”

[3] Mr Reidy subsequently confirmed that he proposed to represent himself. Consequently, on 8 July 2015 I issued further directions which relevantly stated:

“[2] The FAIR WORK COMMISSION DIRECTS Mr Reaburn of Henry Davis York Lawyers to provide to the Commission and to Mr Reidy, a brief written submission detailing the basis upon which a grant of permission is sought. That submission is to be filed and served by close of business 17 July 2015.

[3] In the event that Mr Reidy opposes a grant of permission being made in this matter the Fair Work Commission DIRECTS him to provide to the Commission and to Mr Reaburn, a brief written submission detailing his position by close of business 24 July 2015. In the event that no such submission is made, the Commission may conclude that Mr Reidy does not oppose a grant of permission.”

[4] Section 596 relevantly 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] Submissions on behalf of Mr Reaburn were received on 16 July 2015. Those submissions contended that, as the termination of Mr Reidy’s employment related to factually complex accounting matters, a grant of permission would enable the matter to be dealt with more efficiently. Further, that Mr Reaburn’s involvement would enable a more orderly approach to cross-examination in the admissibility of evidence. These submissions asserted that Mr Reaburn had been closely associated with the matter to date and that a requirement that ARTC represent itself would lead to inefficiency. They asseted that ARTC did not employ a person with adequate experience in the conduct of arbitrations matters before industrial tribunals. These submissions relied upon a series of Fair Work Commission (FWC) decisions in support of the request for a grant of permission.

[6] In terms of s.596(2)(b) the submissions asserted that, not only was it the case that ARTC did not employ personnel with legal or current industrial advocacy experience but that it was in the process of renegotiating one of its major enterprise agreements which involved substantial allocation of its human resources personnel.

[7] Finally, in terms of s.596(2)(c), the submissions advised that Mr Reidy had had the benefit of legal advice in the conciliation proceedings and the directions conference.

[8] Mr Reidy opposed the request for a grant of permission in submissions filed on 27 July 2015. Whilst I note that while his submissions were filed outside of the designated time, Mr Reidy sought clarification of his capacity to make those submissions within that defined time limit. Accordingly, I have taken his submissions into account in reaching a conclusion relative to this representation issue. Those submissions asserted that a grant of permission for the ARTC would place him at a disadvantage. Further, that the matter is not so factually complex so as to require legal representation and that ARTC is a large employer with significant resources including a large human resource management department. Mr Reidy referred to Rule 12(1) of the FWC Rules and asserted that, irrespective of whether permission was granted to Mr Reaburn, ARTC had the capacity to have lawyers perform “out-of-court” preparation work. Mr Reidy relied upon the Full Bench decision in Asciano Services Pty Ltd v Hadfield 1 (Asciano).

[9] For the sake of completeness it is appropriate that I note that the Full Bench in Asciano considered an appeal made against a decision to refuse a grant of permission. The Full Bench stated:

“[19] We are not satisfied that it is in the public interest that permission to appeal be granted. Nor do we consider that, if s.400(1) does not apply, there are discretionary grounds justifying the grant of permission. We have reached this conclusion for the following reasons:

(1) We do not consider that this appeal gives rise to any issue of general principle, that the Decision was disharmonious with other decisions, or that there is any diversity of decisions at first instance which requires guidance at the Full Bench level. The Federal Court decision in Warrell v Walton and the Full Bench decision in New South Wales Bar Association v McAuliffe12 provide the necessary guidance as to the interpretation and application of s.596. No issue raised in this case would make it necessary to supplement the propositions of general application stated in those decisions. The Decision was one which turned on its own facts.

(2) We do not accept the Appellant’s submission that this case involved an important issue concerning the need to make findings of primary fact upon which the consideration of the criteria in s.596(2) may proceed. In this case, no evidence was adduced in relation to the question of permission to appear, and the matter proceeded on the basis of written submissions which contained a number of uncontested factual assertions. The Decision made it clear that the Commissioner had taken the submissions into account, and it can therefore reasonably be assumed that the Commissioner proceeded on the basis of the asserted facts. In that circumstance, and having regard to the fact that the Decision was merely an interlocutory one, we do not consider it was necessary for the Commissioner to recite the facts asserted in the submissions.

(3) The task of determining whether any of the criteria in s.596(2) is satisfied involves the making of an evaluative judgment akin to the exercise of a discretion. Although reasonable minds might differ as to whether any of those criteria was satisfied on the facts of this case, we do not think it can be said that the conclusions reached by the Commissioner were not reasonably available on the asserted facts.

(4) We do not consider, having regard to the internal legal, human resources and other specialist personnel available to it, that the Decision manifests any injustice to the Appellant. The particular concern expressed by the Appellant that any such personnel may not actually be available to represent it at the hearing, which is due to run from 28 April-1 May 2015, is ameliorated by the fact that, as became apparent during the hearing of the appeal, the matter will not be ready for hearing on those dates and will have to be rescheduled. The availability of the parties’ representatives will no doubt be taken into consideration by the Commissioner when further dates are set.

(5) The effect of rule 12(1) of the Fair Work Commission Rules 2013 when read with s.596(1) is that the Decision does not affect the capacity of the Appellant to have its out-of-court preparation work performed by lawyers. This further ameliorates the effect of the Decision, which is confined to in-court representation.”

[10] In Mr Reidy’s particular circumstances I have noted that ARTC is a substantial employer. I am not satisfied that representation by a lawyer would enable this particular matter to be dealt with more efficiently in that it seems to me that the termination of Mr Reidy’s employment was related to his behaviour in the context of compliance with ARTC policies and procedures. There is nothing before me that indicates that the matter is of substantial complexity such that it is beyond the remit of ARTC to efficiently represent itself.

[11] In terms of s.596(2)(b) I am not satisfied that ARTC is unable to represent itself effectively. I have noted that ARTC is involved in enterprise agreement negotiations and appreciate that this may involve a substantial commitment on the part of its human resource management function. However, the information before me does not establish that this human resource management function is unable to represent ARTC in this matter. Whilst it may be the case that there are no personnel within that human resource function who have either legal qualifications or experience in appearing in this tribunal, I am not satisfied that the submissions establish an inability, on the part of ARTC, to represent itself effectively.

[12] Finally, in terms of s.596(2)(c), I am not satisfied that the fact that Mr Reidy was represented in the conciliation conference, or for that matter in a telephone directions conference for the purpose of making arrangements for the determination of the matter, means that it would be unfair not to allow ARTC to be represented in the determination of the merits of the application. Simply put, considerations of fairness between Mr Reidy and ARTC mitigate against the requested grant of permission.

[13] For these reasons I am not satisfied that the circumstances of this matter meet any of the requirements set out in s.596(2) and am accordingly, not prepared to grant permission for ARTC to be represented by a lawyer in this matter.

 1   [2015] FWCFB 2618

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