Mary Read v Gordon Square Child Care Centre Inc T/A Gordon Square Early Learning Centre

[2012] FWA 6557

[2012] FWA 6557

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Mary Read
v
Gordon Square Child Care Centre Inc T/A Gordon Square Early Learning Centre
(U2012/6941)

COMMISSIONER BISSETT MELBOURNE, 1 AUGUST 2012

Application for unfair dismissal remedy - permission to be represented granted.

[1] This matter concerns an application for leave in relation to the appearance of a legal representative at an unfair dismissal hearing listed for 8-9 August 2012.

[2] The Respondent has provided a notice of a representative commencing to act. That representative is a legal practitioner. The Applicant has indicated that she objects to permission being granted and has applied to have the question of permission to appear resolved prior to the hearing of the substantive application.

[3] Section 596 of the Fair Work Act 2009 (the Act) provides as follows:

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 employersthat 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.

[4] The Applicant says the Respondent should be denied permission to be represented by a legal practitioner as the Applicant is not legally represented. She also submits that the resolution of the matter will rest on a simple analysis of the facts and the appearance of a legal practitioner by the Respondent will put the Applicant at a disadvantage.

[5] The Respondent says that permission should be granted as the Applicant’s written submission is legalistic with an extensive analysis of case law and that the Respondent would be at a disadvantage because of a lack of knowledge in such an area.

Consideration

[6] The decision to allow a party to be represented in a matter is a discretionary one that can only be exercised if one or more of the conditions in s.596(2)(a)-(c) is satisfied.

[7] I note that the Respondent has about 15 employees and has been represented at all stages of the application, first by the Tasmanian Chamber of Commerce and Industry (TCCI) and then, from 28 May 2012, by a legal practitioner. Had the Respondent continued to be represented by TCCI the question of permission would not arise (see s.596(4) of the Act).

[8] I have considered the submissions and witnesses statements lodged put by both the Applicant and the Respondent. In particular I do note that the Applicant has quoted from a number of decisions of the tribunal in her submission as to why she was unfairly dismissed. It is apparent from the submission of the Applicant that she has either received some legal training or has had the assistance of a person with legal training in the development of her submission.

[9] The material lodged by the parties indicates that four witnesses will be called during the hearing. I accept that a number of the issues to be determined in the application are factual issues but I also note that others matters may include the effect of laws regulating education and care services for children, the duty of care of those providing care to children and how this should be exercised and whether the safety and wellbeing of the children was put at risk by the actions of the Applicant. These latter issues go beyond a mere factual dispute.

[10] I am of the opinion, given that this matter does raise issues relating to legislation and regulation of child services and duty of care and that there are a number of contested issues, that the matter will be dealt with more efficiently, if permission is granted to the Respondent to be represented by a legal practitioner.

[11] I therefore grant permission to the Respondent to be represented by a legal practitioner at the hearing of this application.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

<Price code A, PR527426>