Mr Gary Dufall v Greyhound Australia Pty Ltd

[2015] FWC 2426

[2015] FWC 2426

FAIR WORK COMMISSION

DECISION

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

Mr Gary Dufall
v
Greyhound Australia Pty Ltd
(U2014/12638)

COMMISSIONER CLOGHAN PERTH, 9 APRIL 2015

Application for relief from unfair dismissal - representation.

[1] On 19 September 2014, Mr Gary Dufall (Mr Dufall or Applicant) made application to the Fair Work Commission (Commission) seeking a remedy for alleged unfair dismissal from his former employer, Greyhound Australia Pty Ltd (Greyhound or Employer).

[2] The application was made pursuant to s.394 of the Fair Work Act 2009 (FW Act).

[3] This Decision deals with Mr Dufall’s objection to the Employer being represented by a lawyer in the hearing into the substantive merits of his application on 17 April 2015.

RELEVANT LEGISLATIVE FRAMEWORK

[4] Section 596 of the FW Act sets out the provisions when the Commission may grant permission for a party to proceedings to be represented by a lawyer or paid agent as follows:

“(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.
...”

RELEVANT BACKGROUND

[5] Mr Dufall is represented by Mr Glenn Ferguson, Senior Projects Officer, Transport Workers’ Union of Australia, Western Australian Branch (TWU).

[6] The Employer is seeking to be represented by Mr Pollock, Senior Associate, from Herbert Smith Freehills (HSF) at the hearing on 17 April 2015.

[7] On 4 March 2015, the Applicant’s representative (TWU) provided a written submission opposing the Employer being represented by a lawyer.

[8] On 11 March 2015, the Employer provided a response to the Applicant’s submission opposing legal representation. The submission relied upon an earlier submission in matter U2014/11992 (Mr Woodward) involving the same employer and also an objection to legal representation.

[9] The submission from the Employer’s representative (HSF) and the Applicant’s representative (TWU) are identical (save the necessary identity changes) as the submissions in matter U2014/11992 (Mr Woodward).

[10] In view of the sameness of the submissions of the parties in this application, I do not intend to repeat my reasons for decision in matter U2014/11992 but refer the parties to paragraphs [13] to [25] in [2015] FWC 2105.

CONCLUSION

[11] For the reasons set out above, including paragraphs [13] to [25] in [2015] FWC 2105, I am satisfied that the requirement in s.596(2)(c) of the FW Act has been met. I am also satisfied, in the circumstances, that I should exercise my general discretion in s.596(1) of the FW Act and give the Employer leave to be represented in the hearing on 17 April 2015.

COMMISSIONER

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