Michael Longford v Aboriginal Elders and Community Care Services Inc T/A Aboriginal Elders Village

[2014] FWC 7599

[2014] FWC 7599

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Michael Longford
v
Aboriginal Elders & Community Care Services Inc T/A Aboriginal Elders Village
(U2014/8955)

SENIOR DEPUTY PRESIDENT O’CALLAGHAN ADELAIDE, 27 OCTOBER 2014

Application for relief from unfair dismissal - representation - granted.

[1] This decision sets out my reasons for granting permission to Ms Butler, of counsel, to represent Aboriginal Elders & Community Care Services Inc T/A Aboriginal Elders Village (Aboriginal Elders) in an unfair dismissal application lodged by Mr Longford.

[2] Mr Longford’s application was lodged on 27 August 2014. It is listed for hearing before Commissioner Wilson on 15 December 2014. On 13 October 2014 I conducted a directions conference. At this conference, Ms Butler confirmed that she sought a grant of permission pursuant to s.596(2) of the Fair Work Act 2009 (the FW Act).

[3] I issued directions shortly after this conference. These directions relevantly stated:

“The FAIR WORK COMMISSION DIRECTS Ms Butler, as she has advised that she seeks a grant of permission to represent the respondent, to file in the Commission and serve on Mr Dean, representing Mr Longford, by close of business 20 October 2014, brief written submissions addressing the basis upon which a grant of permission is sought. In the event that Mr Longford opposes such a grant, advice detailing his position is to be filed in the Commission and provided to Ms Butler by close of business 27 October 2014. In that event, I will list the matter for a brief telephone hearing to determine that question before the file is sent to Commissioner Wilson.” 1

[4] Ms Butler subsequently provided advice 2 which confirmed that she sought a grant of permission on the following basis:

“The respondent does not have specialist human resources staff but rather outsources its human resourcing function to either an industrial relations consultant or an employment lawyer;

The respondent is insufficiently experienced in the matter before the commission and is not in a position to represent itself effectively;

The applicant is represented by an experienced arbitration advocate employed by an industrial association; and

To not permit the respondent to be represented by a lawyer an imbalance between the parties will emerge which would be manifestly unfair to the respondent.” 3

[5] Mr Dean, of United Voice, representing Mr Longford, provided submissions in reply in which he opposed a grant of permission. Mr Dean asserted that the matter raised no complex or novel legal questions, there were no jurisdictional objections and the termination of Mr Longford’s employment centred on a narrow factual dispute. Mr Dean’s submission was that the assertion that Aboriginal Elders was insufficiently experienced in the matter before the Commission did not represent a basis for a grant of permission. Further, Mr Dean’s position was that the fact of Mr Longford’s representation by an officer of United Voice did not raise issues of fairness.

[6] The representation issue was the subject of a telephone hearing on 24 October 2014. Having considered all of the material before me relative to this issue I granted permission to Ms Butler pursuant to s.596(2)(a), (b) and (c).

[7] 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.”

[8] My conclusion with respect to s.596(2)(a) was based on my conclusion that legal representation of Aboriginal Elders would enable the matter to be dealt with more efficiently in terms of issues such as the exchanging of documentation and identification of matters relevant to s.587 of the FW Act than would be the case if representation had to be provided by an Aboriginal Elders senior manager.

[9] Further, I am satisfied that Aboriginal Elders utilised the services of a Human Resources consultant in deciding to terminate Mr Longford’s employment. Without legal representation, issues associated with identifying the basis for that advice, which I understand was provided to the Executive Director of Aboriginal Elders, are likely to be unnecessarily complex. I consider it likely that, if a grant of permission was not made, this person may well have to represent Aboriginal Elders, thereby creating inefficiency and complexity.

[10] This same consideration is also relevant to my conclusion with respect to s.596(2)(b). In addition, I am satisfied that, on the information before me, the Executive Director of Aboriginal Elders acted in concert with the Board of that organisation such that I have concerns that he would not be able to represent Aboriginal Elders effectively without legal representation.

[11] Finally, in terms of s.596(2)(c), I have concluded that, in this situation, when Mr Longford is represented by an experienced practitioner, it would be unfair not to allow Aboriginal Elders to be legally represented.

SENIOR DEPUTY PRESIDENT

Appearances (By telephone):

P Dean appearing for the Applicant.

R Butler counsel for the Respondent.

Hearing details:

2014.

Adelaide:

October 24.

 1   Directions issued on 13 October 2014, para [2]

 2   17 October 2014

 3   Submissions by the Respondent’s Legal Representative, 17 October 2014, para 2, a.- d.

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