Miss Carey Hauri v Vocational Training Australia Pty Ltd T/A Ashley Institute of Training

[2013] FWC 1731

[2013] FWC 1731

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Miss Carey Hauri
v
Vocational Training Australia Pty Ltd T/A Ashley Institute of Training
(U2013/5415)

DEPUTY PRESIDENT BARTEL ADELAIDE, 20 MARCH 2013

Termination of employment - representation by lawyer

[1] Carey Hauri (the applicant) has made application pursuant to s.394 of the Fair Work Act 2009 (the Act) seeking an unfair dismissal remedy in relation to her dismissal from Vocational Training Australia Pty Ltd T/A Ashley Institute of Training (the respondent or the employer) on 19 December 2012. This decision deals with an application by the respondent for permission to be represented by a paid agent, Mr Greg Selig of Workplace Advisory Group, in accordance with s.596 of the Act. The applicant is unrepresented and opposes permission being granted.

[2] The respondent is a national employer with approximately 60 employees. In South Australia, the applicant was one of 5 employees employed by the respondent.

[3] The parties each filed written submissions and have consented to the Fair Work Commission (the FWC) determining the representation issue on the basis of these submissions.

[4] Section 596 of the Act is in the following terms:

“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.

(3) The FWC’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 Registered Organisations Act; or
(iii) a peak council; or
(iv) a bargaining representative;
that is representing the person; or
(c) is a bargaining representative.”

[5] Section 596 involves an exercise of discretion by the FWC but the discretion to grant permission to be represented by lawyer or paid agent can only be exercised if any or all of the circumstances in ss.596(2)(a), (b) or (c) are satisfied.

[6] Mr Selig submitted that the involvement of an experienced advocate would facilitate the efficient hearing of the matter, which involves significant factual dispute and a number of witnesses for each side. He stated that the respondent has no dedicated in-house personnel with legal qualifications or industrial experience and in the absence of representation, the respondent’s SA Manager, Mr Baker would be required to conduct the case. Mr Selig submitted that Mr Baker has neither qualifications nor experience in industrial matters or advocacy before industrial tribunals and that a requirement that he present the case for the respondent would have adverse consequences for the day to day operations of the SA business. Mr Selig indicated that Mr Baker would be a key witness for the respondent and suggested that if he was required to be both advocate and witness this would be prejudicial to the effective conduct of the respondent’s case. He also noted that the respondent bears the onus of proof in relation to the dismissal.

[7] In relation to fairness between the parties, Mr Selig stated that although the applicant is unrepresented, the pleadings in the Form F2 Application for Unfair Dismissal Remedy indicate that the applicant has a level of knowledge and/or access to advice that would place her in a superior position to the respondent if it was denied representation. Mr Selig relied on the decision in Flood v Aviation Ground Handling Pty Ltd, 1 in support of granting permission to be represented.

[8] Ms Hauri submitted that representation does not guarantee that the proceedings will be conducted more efficiently and that she hasconfidence in the FWC to deal with the contested facts and witness evidence.

[9] She noted that Mr Baker was absent for an extended period in 2012 and that this did not impact on the viability of the respondent’s operations. Further, as a key witness for the respondent, Mr Baker would be absent from his position during the trial in any event. Ms Hauri suggested that his experience in the role of State Manager and his previous working experience would have given Mr Baker an insight into the process of giving evidence and the presentation of a case.

[10] Ms Hauri submitted that the respondent employs a National Human Resources Manager who, the applicant presumed, would have a familiarity with the legislation and/or experience in FWC proceedings. It was put that even if this was not the case, there was nothing to stop the HR Manager familiarizing herself with the legislation and proceedings in the same way as she had done. The applicant submitted that she had no legal qualifications or experience in industrial matters.

[11] Ms Hauri noted that if permission to be represented was declined, the respondent could still obtain advice and assistance with the preparation of its case.

[12] Finally, it was submitted by Ms Hauri that granting permission for the respondent to be represented would result in unfairness as she has to contend with all the disadvantages that Mr Selig highlighted if Mr Baker was required to present the respondent’s case.

Consideration

[13] The applicant’s dismissal was based on performance issues, which she disputes.The documents on file indicatethat the respondent’s national HR Manager, Ms Miller, was involved in the process leading to the applicant’s dismissal and while no statements have yet been filed, it is likely that Ms Miller will also be a witness. Nonetheless it is the respondent’s decision as to who will present its case in the absence of permission to be represented, and the ‘operational’ implications for the SA branch of the business as raised by Mr Selig must be seen in this context.

[14] Reasonable minds may differ on the complexity of a case and the ability of a representative to enable the matter to be dealt with more efficiently. The task of making an assessment in relation to the matters in s.596(2) of the Act is made more difficult when statements and outlines of arguments are yet to be filed. Nonetheless the following features of the present case are relevant:

● From the documents filed by the applicant to date, it is apparent that she is articulate and capable of ascertaining the legal intent of the provisions of the Act and dealing logically with the respective arguments;

● Given Mr Baker’s status with the respondent business, it is reasonable to assume that he does not suffer from language or other barriers that would impact on his ability to present the respondent’s case;

● The applicant has no prior experience with industrial proceedings;

● The case does not involve technical or jurisdictional issues; and

● The requirement for the respondent’s SA Manager to be both witness and advocate places him in the same position as the applicant.

[15] I consider that there are a number of features of the decision in Flood, above, where permission to be represented was granted, which distinguish it from the present matter. Commissioner Asbury held in Flood that the matter was complex, in part because the central issue involved an alleged serious safety breach and because of the commercial arrangements that existed between the respondent and the local regional Council. The Commissioner noted that the applicant’s objection to permission for the respondent to be represented related more to the identity of the representative rather than the issue of representation per se and that, in addition, there was a long history of the particular representative appearing for the respondent.

[16] Each case is to be considered on its particular facts and circumstances. I am not satisfied that the present matter is sufficiently complex to warrant representation or that the respondent will not be able to effectively represent itself in the proceedings, especially given the fact that that it will have access to the advice and assistance of Mr Selig in the preparation of its case. I accept that there are difficulties associated with being both witness and advocate, but the Commission can assist the parties in this regard. Finally I consider that fairness as and between the parties will be enhanced if permission to be represented is declined in this instance, and I so decide.

DEPUTY PRESIDENT

Hearing details: On the papers - Respondent’s Outline of Submissions filed 4 March 2013; Applicant’s Outline of Submissions filed 9 March 2013.

 1   [2011] FWA 3013

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