Mr Matthew Richardson v Australian Postal Corporation

[2020] FWC 4637

[2020] FWC 4637

FAIR WORK COMMISSION

DECISION

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

Mr Matthew Richardson
v
Australian Postal Corporation
(U2020/7331)

COMMISSIONER LEE MELBOURNE, 1 SEPTEMBER 2020

Application for permission for representation by lawyer or paid agent.

[1] This Decision is made in respect to the discrete question as to whether the Fair Work

Commission (the Commission) should grant permission for the Australian Postal Corporation (the Respondent) to be represented by a lawyer in this matter at the forthcoming Conference/Hearing.

[2] The Respondent seeks permission of the Commission to be represented by Mr Jack Tracey of Counsel and Corrs Chambers Westgarth in this matter pursuant to s. 596 of the Fair Work Act 2009 (Cth) (FW Act). The Respondent relies upon each of the grounds set out in s. 596(2) of the FW Act.

[3] Mr Richardson (the Applicant) is represented by the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (Victoria Branch). The Applicant opposes the Respondent’s application for permission to appear in the matter.

[4] Directions that have been set in the matter included directions for the parties to file submissions on the question of permission to appear. The parties filed submissions in accordance with the directions set and have advised that they are content for the matter to be determined on the papers without the need for a hearing.

[5] The Respondent relies on all three limbs of s. 596(2) in its submissions seeking permission to appear. However, it is only necessary to deal with the submissions relevant to s. 596(2)(a) for reasons that become apparent.

[6] The Applicant opposes permission to appear. Relevant to the consideration under s. 596(2)(a), the Applicant submits in summary:

•  The Respondent has a large HR group and employs lawyers and can be represented by one of them.

•  There are no issues of jurisdiction and the matter is not particularly complex.

•  The question is whether an external lawyer would be more efficient compared to an in-house lawyer. 1

[7] The Applicant also submits:

“matters such as the findings of the Board of Reference are inadmissible, unless of course, the Board is called to give relevant evidence. The fact that an unsuccessful appeal to a Board of Reference will be admitted.” 2

[8] The Respondent submits that the requirement that permission would enable the matter to be dealt with more efficiently, taking into account the complexity of the matter, is satisfied taking into account a range of factors. It is not necessary to canvass all the factors raised. In my view the following submission made are most relevant to the consideration:

•  The Respondent submits that there are many facts in this matter which remain in dispute between the parties, including whether the Applicant engaged in the various instances of misconduct for which he was dismissed. This disputed factual matrix is inherently complex and will require a targeted presentation of evidence and cross-examination of witnesses.

•  The Respondent also submits that the application raises issues in relation to how the grounds for dismissal intersected with the Applicant’s obligations as a health and safety representative and the findings made by Australia Post’s Board of Reference prior to the dismissal, all of which involve a degree of complexity. 3

[9] Having taken into account the submissions of the Respondent above and having reviewed the materials submitted, I agree with the Respondent that there is a significant level of complexity in the matter having regard to the matters set out above. I have also taken into account the assertions of the Applicant that findings of the Board of Reference are not admissible unless certain circumstances are met. 4 Consideration of what may be admissible from the Board of Reference process will likely add to the level of complexity.

[10] As to whether grating permission would enable the matter to be dealt with more efficiently, while I note that the Respondent have in-house legal counsel, 5 the Respondent seeks to be represented by Mr Jack Tracey of Counsel. The Respondent submits that Mr Tracey is an experienced barrister,6 and this is not challenged by the Applicant.

[11] Having taken into account all of the relevant circumstances, I am satisfied that allowing a lawyer to represent the Respondent will enable the matter to be dealt with more efficiently, taking into account the complexity of the matter.

[12] The Respondent is therefore granted permission to be legally represented in the forthcoming proceedings in this matter.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

<PR722343>

 1   Applicant’s Outline of Submissions dated 29 July 2020

 2   Ibid at paragraph 14

 3   Respondent’s Outline of Submissions dated 28 July 2020 at paragraphs 4 - 5

 4   Applicant’s Outline of Submissions dated 29 July 2020 at paragraph 14

 5   Respondent’s Outline of Submissions dated 28 July 2020 at paragraph 8(c)

 6   Ibid