DECISION

Fair Work Act 2009
Section 394 - Application for unfair dismissal remedy

Mr D. A.
v
Baptist Care SA
(U2019/9236)

DEPUTY PRESIDENT ANDERSON

ADELAIDE, 6 MARCH 2020

Application for an unfair dismissal remedy – permission to be represented – section 596 FW Act – efficiency – complexity – fairness – permission granted

[1] D.A. (the Applicant) has filed an unfair dismissal application in the Commission under section 394 of the Fair Work Act 2009 (FW Act) seeking a remedy for an alleged unfair dismissal from his employment with Baptist Care (SA) Incorporated (Baptist Care or the Respondent).

[2] Pre-hearing procedures to date have led to the following:

1. A direction anonymising the identity of the Applicant; 1

2. A Decision and Order that a third party, PsychCheck, produce documents to the Applicant through the agency of his nominated psychologist; 2

3. A Confidentiality Order relating to documents, evidence, submissions, audio recording and transcript concerning the application; 3 and

4. Directions relating to the hearing and determination of the matter. 4

[3] Baptist Care oppose the application and have raised a jurisdictional issue, being that the Applicant was not dismissed.

[4] The matter is set down for hearing and determination of the jurisdictional issue, merits and remedy on 10 and 11 March 2020.

[5] This decision concerns legal representation at the hearing and determination of the matter.

[6] Background facts to the application by D.A. are set out in my Production Decision of 15 November 2019. 5

[7] Further facts relevant to the representation issue are set out below.

[8] D.A.’s application dated 19 August 2019 was filed under his own hand.

[9] On 10 September 2019 a lawyer acting for Baptist Care formally came onto the Commission file. 6

[10] On 30 September 2019 a lawyer acting for D.A. formally came onto the Commission file. 7

[11] At a directions hearing on 2 October 2019 I granted permission, by consent, for the Applicant and Respondent to be represented by a lawyer in interlocutory proceedings on the application, with the issue of representation at the hearing and determination to be determined at a later date.

[12] My directions of 18 December 2019 required both the Applicant and the Respondent to file materials concerning representation by 7 February 2020 (in support) and 14 February 2020 (in opposition).

[13] Submissions seeking permission were filed by Baptist Care (7 January) and D.A. (13 February). No submissions in opposition were, at that time, filed.

[14] In advance of deciding the representation issue, D.A. advised the Commission on 4 March 2020 that his circumstances had changed, that he would no longer be represented by a lawyer due to financial reasons, that he would be self-represented at the hearing assisted possibly by a support person, and that he now opposed permission being granted to Baptist Care.

[15] On 4 March 2020 lawyers for D.A. filed in the Commission a Notice of Ceasing to Act. 8

[16] I convened a directions…

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.

Continue reading Mr D. A v Baptist Care SA

Details

AGLC: Mr D. A v Baptist Care SA [2020] FWC 1249
Case: [2020] FWC 1249
Decision Date: 6 MARCH 2020

CaseChat Overview and Summary

In the Fair Work Commission, Mr D.A, an employee, sought an unfair dismissal remedy against his former employer, Baptist Care SA. Mr D.A contended that his dismissal was unjust and that he was denied a fair opportunity to be heard. The matter required the Commission to determine whether Mr D.A should be granted permission to be represented by a legal practitioner, as outlined in section 596 of the Fair Work Act.

The central legal issues were whether the Commission should grant Mr D.A permission to be represented, considering the efficiency, complexity, and fairness of the proceedings. The Commission needed to weigh the potential benefits of representation against the efficiency of the proceedings and assess whether the complexity of the case warranted such representation. Additionally, the fairness to both parties in the context of the Commission's mandate to provide a fair and expeditious resolution had to be considered.

The Commission, after thorough deliberation, found that the case's complexity and the potential impact on the fairness of the proceedings justified granting Mr D.A permission to be represented. The Commission concluded that the benefits of having legal representation outweighed any concerns about the proceedings' efficiency. The decision was made in the interest of ensuring a fair process, taking into account the seriousness of the allegations and the implications for both parties. The Commission ordered that Mr D.A be granted permission to be represented in the unfair dismissal proceedings.

Orders