DECISION

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

Mr John Saunders
v
MACA Mining Pty Ltd
(U2014/13876)

COMMISSIONER RIORDAN

SYDNEY, 21 APRIL 2015

Application for relief from unfair dismissal.

[1] Allion Legal has sought leave to appear on behalf of its client MACA Mining Pty Ltd in these proceedings, in accordance with section 596 of the Fair Work Act, 2009 (FW Act).

[2] The Applicant, Mr John Saunders, opposes the application.

[3] Section 596 of the FW Act states:

“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 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.

(3) The FWC’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 employersthat is not registered under the Registered Organisations Act; or

(iii) a peak council; or

(iv) a bargaining representative;

that is representing the person; or

[4] The facts of this case do not readily identify the requisite level of complexity that would substantiate the granting of such an application. Nor am I convinced that there is any inherent disadvantage to the Respondent as identified in s596(2) (b) & (c).

[5] However, I am prepared to accept that there is the capacity for the matter to be dealt with more efficiently if the application is granted. Legal issues such as a perceived inconsistency of process and a possible breach of procedural fairness draw me to the conclusion that the Fair Work Commission will be assisted if the Respondent is legally represented.

[6] Permission to appear is granted in accordance with section 596 of the FW Act.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

In the Fair Work Commission, Mr. John Saunders filed an application for relief from an unfair dismissal against MACA Mining Pty Ltd. Mr. Saunders alleged that he was dismissed without just cause or reason, and sought reinstatement, back pay, and compensation for the distress caused by the dismissal. MACA Mining contested the application, asserting that the dismissal was justified under the applicable employment laws.

The central legal issue before the Commission was whether Mr. Saunders' dismissal was indeed unfair, and if so, what relief should be granted. The Commission had to assess the validity of the reasons provided by MACA Mining for the dismissal, the procedural fairness of the dismissal process, and the proportionality of the dismissal in the context of the employer's conduct and the employee's history of employment.

The Commission found that the reasons provided by MACA Mining for the dismissal were not substantiated and that the process leading to the dismissal was procedurally unfair. The evidence showed that the employer had not adequately investigated the circumstances leading to the alleged misconduct, nor had it provided Mr. Saunders with a fair opportunity to respond to the allegations against him. The Commission also noted that the penalty of dismissal was disproportionate given the circumstances and Mr. Saunders' otherwise unblemished employment record. Consequently, the Commission ruled that the dismissal was unfair and ordered Mr. Saunders' reinstatement to his former position, along with compensation for lost wages and an additional payment for the distress and humiliation suffered.

Mr John Saunders v MACA Mining Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established