Mr Daniel Costa v A & L Windows (SA) Pty Ltd as trustee of a & L Windows SA Unit Trust

[2018] FWC 6447

[2018] FWC 6447

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

Section 394 - Application for unfair dismissal remedy

Mr Daniel Costa

v

A & L Windows (SA) Pty Ltd as trustee of A & L Windows SA Unit Trust

(U2018/8664)

Deputy President Anderson ADELAIDE, 17 OCTOBER 2018

Application for an unfair dismissal remedy – representation – permission granted

1. On 2 October 2018 I issued directions requiring the Applicant (Mr Costa) and the Respondent (referred to as ‘A & L Windows’ or ‘the employer’) to provide written submissions to the Fair Work Commission (the Commission) should either seek permission to be represented by a legal practitioner or paid agent at the hearing of this matter on 21 and 22 November 2018.

1. The Commission has received written submissions from both Mr Costa[1] and the employer[2] seeking permission under section 596 of the Fair Work Act 2009 (FW Act).

1. If they are granted permission, neither Mr Costa nor A & L Windows oppose permission being granted to the other side.

1. I have considered these submissions and the relevant provisions of the FW Act.

1. The hearing on 21 and 22 November 2018 concerns whether Mr Costa’s dismissal on 1 August 2018 was harsh, unjust or unreasonable, and if so, the appropriate remedy. To date, no threshold or jurisdictional issues have arisen. 

1. The matter concerns a conduct-based dismissal. It would appear to be a dismissal inside a notice period of resignation, which may add to complexity. It will be determined by formal hearing in open court over two days. It would appear from material filed, that substantial oral evidence will be called. The contentions appear to raise disputed facts as to conduct as well as concerning the employer’s policies or practices, the Applicant’s knowledge of such policies and compliance with them. The employer’s submissions on representation[3] also anticipate challenges to the relevance of certain evidence. Mr Costa’s application also raises allegations of procedural unfairness which may require evidence of the employer’s decision-making process.

1. Self-evidently, cross examination of witnesses may be required and issues of credit may need to be determined.

1. I accept that Mr Costa has no experience in presenting a case of this nature, and that being both witness and interrogator of evidence called by his former employer would be a significant burden and potentially unfair to him. Having regard to complexity, the efficient conduct of cross examination and fairness I consider that permission should be granted for Mr Costa to be legally represented at the hearing of this matter.

1. The employer is not a large business and has no senior management with advocacy or industrial experience. I accept that cross examination of witnesses on factual matters relating to conduct and on the alignment of conduct to policy, and submissions on issues of credit, is likely to be more efficiently conducted by a legal representative. It is also relevant that the officers who would otherwise be likely advocates for A & L Windows at the hearing are witnesses who will be giving evidence. Avoiding such a circumstance is desirable. In the context of this case, it would also be unfair to deny the employer external legal representation where it is to be provided to the Applicant. In all the circumstances, I consider that permission should be granted to the employer to be legally represented.

1. I grant permission to both Mr Costa and A & L Windows under section 596 of the FW Act to be legally represented at the hearing of this matter.

DEPUTY PRESIDENT

<PR701538>

[1] Submissions on Representation of Daniel Costa filed by WK Lawyers, 9 October 2018

[2] Submissions on Representation of A & L Windows filed by Mr Luke of Counsel and Thomson Geer, 9 October 2018

[3] At paragraphs 5(b) and 16

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