Mr Paul Crozier v Grenfell Street Hospitality Pty Ltd T/A Ibis Adelaide

[2016] FWC 699

[2016] FWC 699

FAIR WORK COMMISSION

DECISION

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

Mr Paul Crozier
v
Grenfell Street Hospitality Pty Ltd T/A Ibis Adelaide
(U2015/14084)

COMMISSIONER PLATT ADELAIDE, 3 FEBRUARY 2016

Permission to be represented by a 'lawyer of paid agent' pursuant to s.596 of the Fair Work Act 2009.

[1] Mr Crozier has lodged an application pursuant to s.394 of the Fair Work Act 2009 (the FW Act) with respect to the termination of his employment with Grenfell Street Hospitality Pty Ltd T/A Ibis Adelaide (Ibis Adelaide). The application is listed for hearing on 2 and 3 March 2016. This decision deals only with the issue of representation.

[2] In directions issued on 16 December 2015 the parties were advised:

“[2] I note that Cowell Clarke Commercial Lawyers has indicated that a grant of permission for legal representation of Grenfell Street Hospitality Pty Ltd T/A Ibis Adelaide (Ibis Adelaide) will be sought. I have attached a copy of s.596(2) of the Fair Work Act 2009 (the Act), which details the basis upon which permission may be granted. Mr McGrath is directed to provide to the Commission, and to Mr Crozier, by 15 January 2016, a brief submission addressing this section. In the event that Mr Crozier opposes the request for permission made by Mr McGrath, he is directed to detail his position in a brief submission to be provided to the Commission and to Mr McGrath within a further 7 days. In this event, a decision relative to the issue of representation will be issued as soon as practicable.”

[3] I have subsequently received a submission from Ms Swift on behalf Ibis Australia’s in support of a grant of permission for representation and a submission in response from Mr Crozier. In considering this matter I have taken into account the application, the employer’s response (Form F3) and the material filed to date.

[4] Section 596(2) states:

“596 Representation by lawyers and paid agents

…
(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.”

[5] In his application, Mr Crozier asserts he was dismissed for serious misconduct being the theft of hotel property, multiple serious breaches of trust and repeated failure to set a positive leadership example to junior staff. Mr Crozier disputes the basis upon which his employment was terminated. In its response to the application Ibis Adelaide asserts that Mr Crozier attended the employer’s premises, ordered beverages and failed to pay or account for them.

[6] Ms Swift asserts that permission for representation should be granted pursuant to s.596(2)(a) because the matter is likely to involve legal argument over the meaning of serious and wilful misconduct and whether the conduct constituted theft; and the consideration of a significant amount of evidence including video footage and the practices of other managers. Ms Swift also asserts that in terms of s.596(2)(b) Ibis Adelaide has no legally trained personnel and only one human resources person, Ms Asher who may be called as a witness in this matter.

[7] In response, Mr Crozier objects to the grant of permission to be represented and asks that I take into account his lack of legal experience. Mr Crozier asserts that Ibis Adelaide has the internal resources necessary to properly represent itself including a General Manager, Human Resources Manager at Ibis Adelaide, a Regional HR Manager and Regional Director of Operations. Mr Crozier asserts that the matter would be more effectively dealt with without the grant of permission, and as he does not have the resources to engage a lawyer, it would be highly unfair if Ibis Adelaide was so represented.

Findings

[8] I have considered the extent to which a grant of representation should be issued on the basis that it would enable the matter to be dealt with more efficiently, because of its complexity. I am not satisfied that this is the case. The volume of evidence and use of CCTV evidence does not of itself mean the matter is complex. The material before me does not establish a significant level of complexity other than determination of the issues on the facts.

[9] In terms of the second limb of Ms Swift’s application relative to Ibis Adelaide’s capacity to represent itself effectively, I am not satisfied that Ibis Adelaide is unable to represent itself effectively, particularly given that it appears that there are other senior members of the management team who appear to have been involved in the termination process who could represent it.

[10] For the reasons set out in this decision, I am not prepared to grant permission for representation of Ibis Adelaide by a lawyer pursuant to s.596(2).

COMMISSIONER

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