Mr Justin Murray v Flamestop Corporate Services Pty Ltd T/A Flamestop

[2016] FWC 5992

[2016] FWC 5992

FAIR WORK COMMISSION

DECISION

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

Mr Justin Murray
v
Flamestop Corporate Services Pty Ltd T/A Flamestop
(U2016/8560)

COMMISSIONER BISSETT MELBOURNE, 24 AUGUST 2016

Application for permission to be represented – second application – unusual circumstances – permission granted.

[1] Mr Justin Murray has made an application to the Fair Work Commission (Commission) seeking relief from unfair dismissal. Mr Murray’s employment was terminated on 23 March 2016. His application to the Fair Work Commission was made on 25 July 2016. The application was made outside the 21 day time limit for the making of an application specified in s.394 of the Fair Work Act 2009 (the Act). An application for an extension of time within which to make his application is listed for hearing before the Commission on Monday 29 August 2016.

[2] Mr Murray’s employer, Flamestop Corporate Services Pty Ltd T/A Flamestop (Flamestop) has sought permission to be represented in the hearing of the application for an extension of time. Mr Murray opposes the grant of permission.

Legislation

[3] Section 596(2) of the 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.

Submissions

[4] Flamestop says that the matter is complex such that it warrants permission being granted to it to be represented. It says that the grant of permission would enable the matter to be dealt with more efficiently.

[5] Flamestop submits that Mr Murray has failed to provide any explanation for the delay in filing his application and has failed to address, in the material provided, any matters relevant to a consideration for an extension of time under s.394 of the Act.

[6] Flamestop submits that Mr Murray has ‘failed to appreciate the relevant processes of the Commission.’ It says therefore that the matter could be dealt with more efficiently if permission was granted.

[7] Flamestop also submits that Mr Birch of Flamestop is not familiar with the provisions of the Act and could not properly represent Flamestop and that if the matter proceeds, he may be required as a witness. Further it says that it has no dedicated human resources staff.

[8] Flamestop also submits that Mr Murray has chosen to represent himself and it would not be unfair to grant permission to Flamestop.

[9] Mr Murray, in opposing the grant of permission, submits that none of the jurisdictional matters raised by Flamestop is particularly complex and it is not the role of Flamestop to determine complexity of the matter or the answer to the jurisdictional matters and that these are matters to be determined by the Commission. Legal representation is not required to do so.

[10] Mr Murray says that Flamestop does have a person engaged in the human resources area of the business and a submission by Flamestop that it has no dedicated human resources personnel is incorrect.

[11] Mr Murray says he is unable to afford legal representation and it would not be fair to him to grant such representation to Flamestop.

Consideration

[12] The determination of the grant of permission is a two stage process. First, the Commission must be satisfied that one of the conditions in s.596(2)(a)-(c) has been satisfied. If it has, the Commission must then decide whether to exercise its discretion and grant permission.
[13] In normal circumstances it would be difficult to argue that a basic extension of time hearing (as this appears) is complex. In this case, it is perhaps more complex than first appears.

[14] This is the second application for unfair dismissal made by Mr Murray. His first application was subject to conciliation, as is the normal course of such applications to the Commission, where it apparently settled. A settlement agreement was reached, reduced to writing and signed by the parties. Mr Murray signed and filed with the Commission a notice of discontinuance in relation to that application.

[15] On Mr Murray’s current application (the second application), he says that Flamestop has not fulfilled the settlement agreement in relation to his first application and he therefore wants his unfair dismissal application heard. He acknowledged that he filed a notice of discontinuance on the first application in his second application.

[16] Further, I do note that Mr Murray has failed to address any of the matters that must be considered by the Commission in determining if exceptional circumstances exist, such that an extension of time should be granted.

[17] For all of these reasons and pursuant to s.596(2)(a) of the Act I am satisfied that there is some complexity to the matter. I am satisfied that it would enable the matter to be dealt with more efficiently if permission was granted.

[18] Whilst it is not necessary to consider other matters, I would observe that the ability of a party to represent itself is not predicated on it employing dedicated human resources staff or a person with legal background or training or someone familiar with the provisions of the Act. The Act operates on a presumption that a party will represent itself in a matter before the Commission. In unfair dismissal matters it is highly likely that one or both parties will have little exposure to the FW Act or not be legally trained. This alone does not mean that a party could not represent itself effectively.

[19] In this matter, the concentration of Flamestop on the skills or abilities of one person is misplaced. That Mr Murray nominated Mr Birch as the contact person within Flamestop on his application does not mean that it is the skills and abilities of Mr Birch alone that should be considered. Section 596(2)(b) refers to the ability (in this case) of Flamestop to represent itself effectively. This would require a consideration of whether anyone in Flamestop could represent it effectively.

[20] That one party is not represented does not make it unfair not to grant permission to the other. Submissions to this extent are misplaced.

Conclusion

[21] This is an unusual case. The Commission is only asked to determine if an extension of time should be granted. Having found that the requirements of s.596(2)(a) have been met and in circumstances where it is the second application made by Mr Murray and the first was discontinued in accordance with a settlement agreement, I am satisfied that it is appropriate in all of the circumstances to grant permission to Flamestop to be represented in the hearing of the extension of time application.

[22] The grant of permission does not extend beyond the extension of time hearing and, should the matter proceed, Flamestop will need to seek permission anew to be represented.

COMMISSIONER

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