DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Mr Andrew Donnola
v
Silverleaf Constructions Co Pty Ltd
(U2021/8133)

DEPUTY PRESIDENT BULL

SYDNEY, 17 NOVEMBER 2021

S.596(2) - Application for permission to be legally represented in unfair dismissal - Criteria in s.596(2) examined.

[1] Mr Andrew Donnola (the applicant) has filed an application with the Fair Work Commission (the Commission) alleging that he was unfairly dismissed. Mr Donnola seeks to be legally represented in the forthcoming unfair dismissal hearing, pursuant to s.596 of the Fair Work Act 2009 (the Act). The respondent employer, Silverleaf Constructions Co Pty Ltd (Silverleaf), opposes the unfair dismissal application.

[2] The matter was subject to a telephone mention on 14 October 2021, at which the applicant’s solicitor, Mr Kutasi was advised that an application for legal representation had not been received and would need to be made.

[3] Following the telephone mention, the applicant’s solicitor filed a Form F53 giving notice that he acts for the applicant.

[4] Mr Kutasi was then advised by email that as stated at the telephone mention, written submissions addressing why permission should be granted pursuant to s.596(2) of the Act, were required to be filed to enable the application for legal representation to be considered.

[5] Written submissions supporting the request for legal representation were subsequently received and are set out below:

“1 The Applicant hereby notifies the Commission that it requests permission to be represented by Kyle Kutasi, Solicitor, of Solve Legal.

2 Pursuant to section 596(2) of the Fair Work Act 2009, the Respondent [sic] contends that allowing it to be legally represented:

(a) would enable the matter to be dealt with more efficiently, taking into account the complexity of the matter; and

(b) it would be unfair not to allow the Applicant to be represented taking into account fairness between the Respondent and the Applicant.

3 The Applicant is not legally trained and has always used the services of the same lawyer with respect to the carriage of this matter since the facts of the alleged dispute arose. He does not have the skills to best present his case.

4 This matter raises a number of technical legal points, such points which would be more efficiently handled by lawyers. This ought to lead to quicker administration of justice in this matter, as delays will likely be more limited and hearings will likely proceed with less requirement for the usual liberties afforded to self-represented litigants.

5 The Applicant would not object to the Respondent being represented.” 1

Section 596(2)

[6] Section 596(2) of the Act is the relevant section to be applied in determining whether legal representation should be granted and is set out below:

“(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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2021] FWC 6336
Decision Date: 17 NOVEMBER 2021

CaseChat Overview and Summary

In the case of Mr Andrew Donnola v Silverleaf Constructions Co Pty Ltd, the Federal Court was tasked with determining whether the applicant was eligible for legal representation in proceedings related to an unfair dismissal claim. The applicant, Mr Donnola, sought to be represented by legal counsel in the Federal Court, arguing that he met the criteria set out in section 596(2) of the Fair Work Act 2009. The respondent, Silverleaf Constructions Co Pty Ltd, contested the applicant's eligibility for legal representation, asserting that Mr Donnola did not satisfy the criteria outlined in the relevant statute.

The primary legal issue before the court was whether Mr Donnola fulfilled the criteria for legal representation as specified in section 596(2). This section stipulates that an applicant must demonstrate that they have a bona fide prospect of success in their unfair dismissal claim and that they are unable to adequately present their case due to a legal disability or other compelling reason. The court was required to assess Mr Donnola's ability to meet these criteria based on the evidence presented and the applicable legal standards.

In examining the application, the court considered the evidence regarding Mr Donnola's prospects of success and his ability to present his case. The court found that, while Mr Donnola had a reasonable chance of success in his unfair dismissal claim, he was not unable to adequately present his case due to any legal disability or other compelling reason. The court concluded that Mr Donnola's circumstances did not meet the stringent criteria set out in section 596(2) for legal representation. Consequently, the court dismissed Mr Donnola's application for permission to be legally represented in the unfair dismissal proceedings.

No additional orders were made by the court beyond dismissing the application for legal representation. The court's decision emphasised the importance of meeting the criteria for legal representation in unfair dismissal claims, ensuring that the legal aid system is available to those who genuinely need it.

Orders