Mr Joshua Brewer v St Columba College Munno Para Inc T/A St Columba College

[2018] FWC 4580

[2018] FWC 4580

FAIR WORK COMMISSION

DECISION

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

Mr Joshua Brewer
v
St Columba College Munno Para Inc T/A St Columba College
(U2018/5357)

DEPUTY PRESIDENT ANDERSON ADELAIDE, 3 AUGUST 2018

Application for an unfair dismissal remedy

[1] On 12 July 2018 I issued directions requiring the Applicant and the Respondent 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 30 and 31 August 2018.

[2] The Commission has received written submissions from both the Applicant and the Respondent seeking such permission under section 596 of the Fair Work Act 2009 (FW Act).

[3] Neither the Applicant nor the Respondent have made submissions opposing permission being granted to the other side.

[4] I have considered these submissions and the relevant provisions of the FW Act.

[5] The hearing on 30 and 31 August 2018 concerns whether Mr Brewer’s dismissal on 14 May 2018 was harsh, unjust or unreasonable, and if so, the appropriate remedy. To date, no threshold or jurisdictional issues have arisen though an interlocutory application concerning the production of documents, including production by a third party, is currently before the Commission.

[6] The matter will be determined by formal hearing over two days. Based on material filed in accordance with my directions of 12 July 2018 it would appear that substantial disputes of fact will require determination. The evidence also appears to relate to matters of a sensitive nature, including potentially evidence of children. Taking evidence from witnesses may require particular care and professional discretion.

[7] The hearing of the matter is also attended by an added degree of complexity given that orders or directions may need to be issued concerning the taking of evidence or the publication or circulation of certain evidence.

[8] I accept that the Applicant has no experience in presenting a case of this nature, and that being both witness and interrogator of evidence 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 Brewer to be legally represented at the hearing of this matter.

[9] The employer is a mid-sized business said to employ around 198 employees. Whilst it has some capability, I accept that cross examination of witnesses in a lengthy hearing and submissions on issues of credit and dealing with sensitive evidence or witnesses is likely to be more efficiently conducted by a legal representative. It is also relevant that the officer who would otherwise be required to be advocate for the Respondent at the hearing is a witness 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 employee. In all the circumstances, I consider that permission should be granted to the employer to be legally represented.

[10] I grant permission under section 596 of the FW Act.

DEPUTY PRESIDENT

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