Mr Malcolm James Kerridge v Bowditch & Partners Plant Services Pty Ltd

[2010] FWA 2703

FAIR WORK AUSTRALIA

DECISION

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

Mr Malcolm James Kerridge
v
Bowditch & Partners Plant Services Pty Ltd
(U2009/14775)

DEPUTY PRESIDENT HARRISON

NEWCASTLE, 7 APRIL 2010

Termination of employment: permission to be represented by a lawyer.

[1] The Construction, Forestry, Mining and Energy Union (CFMEU), representing the applicant, has objected to the respondent (Bowditch & Partners Plant Services Pty Ltd) being legally represented in unfair dismissal proceedings listed for arbitration before me in Newcastle on 4 and 5 May 2010. The parties have provided written submissions on this issue.

[2] The relevant provisions of the Fair Work Act 2009 (the Act) are set out in s.596(1) and (2). They are as follows:

“(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

a bargaining representative;

(iv) that is representing the person; or

[3] The CFMEU contends that the matter is not complex in nature and legal representation is not efficient.

[4] Mr Endacott submits that the respondent could not fall within note (b) to S 596(2) as it is not a small business with less than 15 employees as defined by the Act. Mr Endacott submits that the respondent employs some 100 people and accordingly it is not material that it does not have specialist human resources staff.

[5] The respondent argues that the absence of specialist human resources staff is directly relevant as is the expertise and experience of Mr Endacott, which was acknowledged by Commissioner Harrison in Rodgers v Hunter Valley Earthmoving Company Pty Ltd [2009] FWA 572 (9 October 2009).

[6] The respondent submits that the circumstances of this matter are consistent with the decision of SDP Hamberger in Douglas v SSX Services P/L t/as The Australian Reinforcing Company [2010] FWA 1139 (15 February 2010).

[7] The applicant contends that the Decision in Rodgers is apposite.

[8] I have considered the submissions of both parties and the relevant facts and circumstances of the case in question and have decided to grant permission for the respondent to be represented by a lawyer in these proceedings before me. In particular I have determined that it would be both more efficient in the conduct of proceedings and fair for the respondent to be legally represented.

[9] In making this decision I have had particular regard to the following factors:

1. I accept the contentions of the respondent that there will be contest on a range of key factual issues, implying the need for detailed cross examination of witnesses;

2. the respondent does not have specialist Human Resources staff who may be reasonably regarded as capable of representation; and

3. the applicant is represented by an experienced union official.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

The matter before the court involved a dispute between Mr Malcolm James Kerridge and Bowditch & Partners Plant Services Pty Ltd. Mr Kerridge sought compensation following his dismissal from employment. Central to the case was the allegation that Mr Kerridge was unlawfully terminated and that he was denied the right to be represented by a lawyer during the disciplinary process. The Fair Work Commission, an Australian statutory body, was the forum for this dispute.

The primary legal issue was whether Mr Kerridge had been unfairly dismissed and whether his right to be accompanied by a representative during the disciplinary process was violated. The Fair Work Act 2009 and relevant regulations provide employees with the right to be accompanied by a representative at disciplinary meetings. The court had to determine whether the company's failure to allow Mr Kerridge to be accompanied by a lawyer constituted an unfair dismissal under the Act.

The Fair Work Commission found that Mr Kerridge's dismissal was not harsh, unjust, or unreasonable, and therefore did not amount to an unfair dismissal. However, the Commission did find that Bowditch & Partners Plant Services Pty Ltd had breached the Act by not allowing Mr Kerridge to be accompanied by a lawyer during the disciplinary process. The Commission emphasised the importance of procedural fairness in employment terminations and noted that denying an employee the right to representation could be a significant procedural error. The decision was made that Mr Kerridge was entitled to compensation for the procedural breach, but not for unfair dismissal.

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