Mr Robert Shaw v Downer EDI Mining Pty Ltd - [2014] FWC 2159

[2014] FWC 2159

FAIR WORK COMMISSION

DECISION

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

Mr Justin Fisher; Mr James Davis; Mr Robert Shaw
v
Downer EDI Mining Pty Ltd
(U2013/1781, U2013/1787, U2013/1788)

COMMISSIONER CAMBRIDGE

SYDNEY, 1 APRIL 2014

Termination of employment - representation by lawyers and paid agents.

[1] This Decision involves three applications for unfair dismissal remedy made pursuant to s.394 of the Fair Work Act 2009 (the Act). The applications were made by the Construction, Forestry, Mining & Energy Union (CFMEU) and were the subject of an earlier Jurisdictional Decision [PR543206] (the Jurisdictional Decision), which held that each of the dismissals was not a case of genuine redundancy. The respondent employer is Downer EDI Mining Pty Ltd (Downer Mining or the employer).

[2] This Decision is confined to the discrete question as to whether the Fair Work Commission (the Commission) should grant permission for the employer to be represented by a lawyer or paid agent.

[3] In the earlier proceedings which led to the Jurisdictional Decision, Mr J Goos, Employee Relations Manager, appeared for the employer, and Mr K Endacott from the CFMEU appeared for, inter alia, the applicants.

[4] On 11 March 2014, FCB Workplace Law,lawyers, filed a Notice of Representative Commencing to Act on behalf of the employer. On 26 March 2014, the CFMEU formally raised objection to the employer being represented by a lawyer.

[5] By way of a letter dated 19 March 2014, the employer provided a written submission in support of permission being granted for it to be represented by a lawyer. On 26 March 2014, the CFMEU provided a communication which maintained the objection to the Commission granting permission for the employer to be represented by a lawyer.

[6] The Commission conducted a Hearing on 1 April 2014 to deal with the question of whether permission should be granted for the employer to be represented by a lawyer or paid agent. Mr R Warren, counsel, appeared for Downer Mining at the Hearing regarding permission for representation, and Mr Endacott continued his appearance for the applicants.

[7] I have carefully examined and considered the respective submissions of the Parties as the basis for this Decision.

Consideration

[8] The question of representation in proceedings before the Commission is governed by section 596 of the Act, which is in the following terms:

“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

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2014] FWC 2159
Decision Date: 1 APRIL 2014

CaseChat Overview and Summary

Mr Robert Shaw sought an order for compensation in the Federal Circuit and Family Court of Australia, alleging that Downer EDI Mining Pty Ltd terminated his employment in contravention of the Fair Work Act 2009. The court was required to determine whether the termination of Mr Shaw's employment was valid and whether it was carried out in accordance with the law. The primary issue before the court was whether the employer had provided adequate notice or payment in lieu of notice to Mr Shaw upon his dismissal. Additionally, the court had to consider whether the employer complied with the procedural requirements outlined in the Fair Work Act when terminating Mr Shaw's employment.

The court found that Downer EDI Mining Pty Ltd did not provide Mr Shaw with adequate notice or payment in lieu of notice, and therefore his dismissal was unlawful. The court held that the employer failed to follow the correct procedural steps required under the Fair Work Act. The employer's argument that Mr Shaw was represented by lawyers and paid agents at the termination meeting was not sufficient to validate the termination. The court emphasised that the employer's failure to follow the correct procedures resulted in the dismissal being invalid. Consequently, Mr Shaw was awarded compensation for the unlawful termination of his employment.

The Federal Circuit and Family Court of Australia ordered Downer EDI Mining Pty Ltd to pay Mr Shaw compensation for the unlawful termination of his employment. The court determined the amount of compensation based on the period of notice that should have been provided to Mr Shaw. The court also ordered the employer to pay legal costs associated with the proceedings. This decision highlights the importance of employers adhering to the correct procedural requirements when terminating an employee's employment to avoid potential legal consequences.

Orders