Mr Paul Desmond v BHP Billiton

[2017] FWC 97

[2017] FWC 97

FAIR WORK COMMISSION

DECISION

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

Mr Paul Desmond
v
BHP Billiton
(U2016/12041)

COMMISSIONER WILLIAMS PERTH, 6 JANUARY 2017

Respondent representation.

[1] BHP Billiton (the Respondent) has requested pursuant to section 596 of the Fair Work Act 2009 (the Act) that they be granted permission to be represented by a lawyer in the above matter and have made submissions in support of this application.

[2] Section 596 of the Act is set out below:

“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.

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.

(3) The FWC’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 Registered Organisations Act; or

(iii) a peak council; or

(iv) a bargaining representative;
that is representing the person; or

(c) is a bargaining representative.”

[3] The hearing of this matter is expected to involve evidence from at most four witnesses for the Applicant and one for the Respondent. The events that triggered the dismissal in large are not in dispute, consistent with this at a directions conference it was agreed that the parties should jointly prepare and file a statement of agreed facts. The extent of any remaining factual disputes is consequently expected to be limited. There are no jurisdictional nor other significant legal issues to be determined.

[4] There is nothing in the submission on behalf of the Respondent nor the application itself that demonstrates that there is complexity involved in this matter such that permitting the Respondent to be represented by a lawyer will enable it to be dealt with more efficiently.

[5] The Respondent does have employees who are legally trained and has a dedicated employee relations team however submits those persons do not have extensive industrial advocacy experience. This is a relatively straightforward unfair dismissal matter. In the context of this matter I am not satisfied that the Respondent is unable to effectively represent itself through its own staff. The inconvenience to the Respondents staff of them attending the hearing of this matter is not a relevant consideration under section 596 of the Act.

[6] The Applicant is self represented and before his dismissal was a Superintendent at the Nickel West site in Kambalda. There is no evidence the Applicant is experienced in conducting industrial advocacy or has acted as a representative in a hearing before this or any other tribunal or court. Consequently it would not be unfair not to allow the Respondent to be represented taking into account fairness between the Respondent and the Applicant.

[7] I have considered the provisions of section 596(2) in the context of this particular application, the submission made on behalf of the Respondent and the circumstances of both parties and I have decided not to grant permission for the Respondent to be represented by a lawyer.

COMMISSIONER

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