Mr Gregory Wood v Direct Enterprise Pty Ltd

[2015] FWC 2822

[2015] FWC 2822

The attached document replaces the document previously issued with the above code on 28 April 2015.

Delete the reference [2012] FWA 2166 in paragraph [10] and replace with [2012] FWA 2966.

Angela Delo

Associate to Commissioner Booth

Dated: 28 April 2015.

[2015] FWC 2822

FAIR WORK COMMISSION

DECISION

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

Mr Gregory Wood
v
Direct Enterprise Pty Ltd
(U2014/15619)

COMMISSIONER BOOTH BRISBANE, 28 APRIL 2015

Termination of employment - Legal Representation.

[1] This matter concerns an application for leave in relation to the appearance of a legal representative for the Respondent, Direct Enterprise Pty Ltd at an unfair dismissal hearing beginning on 23 June 2015.

[2] The Respondent has made an application pursuant to section 596 of the Fair Work Act 2009 (the Act)for permission to be represented at the hearing. That representative is a lawyer. The Respondent provided written submissions in accordance with the Directions. Mr Gregroy Wood (the Applicant) indicated he objected to legal representation and provided written submissions in accordance with the Directions.

[3] Section 596 of the Act provides as follows:

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 FWA (including by making an application or submission to FWA on behalf of the person) by a lawyer or paid agent only with the permission of FWA.

(2) FWA may grant permission for a person to be represented by a lawyer or paid agent in a matter before FWA 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 FWA 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) FWA’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 employers that is not registered under the Fair Work (Registered Organisations) Act 2009; or
(iii) a peak council; or
(iv) a bargaining representative;

that is representing the person; or

(c) is a bargaining representative.

[4] The Applicant submits:-

● that the introduction of a legal representative for the Respondent will lead to a more complex set of circumstances and arguments that would not be relevant to the matters at hand..

● the Respondent’s primary witness, Mr McDonald is the person closest to the facts;

● Mr McDonald’s primary witness is an effective communicator, in fact a well-known motivational speaker, negotiator and mentor;

● Mr McDonald is a well-known expert on all matters related to business and has considerable business experience;

● Mr McDonald has no trouble expressing his point of view and putting forward his argument;

● Further, making his point clear in everyday business, he would have no trouble in the Fair Work Commission arena;

[5] The Applicant further submits:

It would be unfair should the Respondent be allowed to be represented as the Respondent has the financial resources to engage legal representation. Whereas the Applicant does not.

[6] In deciding whether to grant this application, the Respondent submits that legal representation of the Respondent would enable the matter to be dealt with more efficiently taking into account the complexity of the matter.

[7] In particular the Respondent refers to the jurisdictional issue concerning Small Business Fair Dismissal Code and that it further supports (rather than detracts) from its application to be granted permission to be represented by a lawyer. The Applicant asserts the Respondent has retracted any objections and therefore this item should not be considered.

[8] The Respondent intends to pursue the jurisdictional arguments that the Applicant was not an employee of the Respondent; and that it was a case of genuine redundancy. Thus being the case, the Respondent submitted that the jurisdictional objections raise complex legal and factual issues. In addition, these objections will rest on contested factual matters, particularly in relation to the first objection. The Respondent referred to the case of O’Grady v Royal Flying Doctor Service (South Eastern Section) [2010] FWA 1143 wherein the Commission found that jurisdictional issues by their very nature are often complex and may require expertise in case law.

[9] The Respondent also referred to a number of factual matters, which are in serious dis-pute. Resolution of these factual disputes, will be more efficiently dealt with if the Respondent is represented by a lawyer.

[10] The Respondent referred to a number of other issues that it submits contributes to the complexity. In particular reference was made to CEPU v UGL Resources Pty Limited (Project Aurora) [2012] FWA 2966, whereby the Commission found that jurisdictional issue by their very nature are often complex and may require expertise in case law.

[11] The Respondent also made submissions under s.596(2)(b) that it would be unfair not to allow the Respondent to be represented because without representation it would be difficult for the Respondent to be both an effective advocate and witness at the hearing.

[12] Further, it is on the basis that the Respondent has no lawyers on staff nor any industrial advocates who possess necessary skills and does not have a dedicated human resources department. These matters should be taken into account in relation to the Respondent.

[13] On the question of fairness between the Respondent and the Applicant, the Respondent submitted that it “understands that the Applicant has had legal assistance (though not formally on the record) as is apparent from the content of the application and the submissions” but has chosen to represent himself.

[14] Further, the Respondent submitted that the Applicant has mentioned in conferences in relation to this matter that he has obtained legal advice and assistance in relation to the application. He has repeatedly made reference to his “attorney”.

Discussion

[15] The decision to allow a party to be represented in a matter is discretionary and one that can only be exercised if one or more of the conditions in s.596(2)(a)-(c) is satisfied.

[16] I have concluded that permission for the Respondent to be represented by a lawyer will enable the matter to be dealt with more efficiently taking into account the complexity of the matter. This is because the jurisdictional objections in this matter do raise complex legal and factual issues. In particular whether the Applicant was an employee of the Respondent at the time of dismissal and whether the dismissal was a case of genuine redundancy.

[17] It should be clarified however that the Commission will provide assistance to the Applicant to ensure procedural fairness and that there is no disadvantage by any lack of understanding of issues or hearing processes.

[18] For the reasons set out above, I exercise my discretion under s.596 (1) of the Act to grant permission for the Respondent to be represented by a lawyer.

COMMISSIONER

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