Mrs Alicia Di Blasi v Coles Supermarket Aust Pty Ltd

[2019] FWC 2713

[2019] FWC 2713

FAIR WORK COMMISSION

DECISION

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

Mrs Alicia Di Blasi
v
Coles Supermarket Aust Pty Ltd
(U2019/688)

COMMISSIONER HUNT BRISBANE, 18 APRIL 2019

Application for an unfair dismissal remedy – legal representation

[1] This matter concerns an application made by Coles Supermarket Aust Pty Ltd (Coles) for permission to be represented by a lawyer or paid agent at an unfair dismissal hearing.

[2] Coles’ application is made pursuant to s.596 of the Fair Work Act 2009 (the Act). Ms Alicia Di Blasi is the applicant in the proceedings and opposes the application made by Coles for permission to be represented by a consultant or lawyer employed by the law firm Lander & Rogers.

[3] The parties were directed to file submissions as to whether leave for legal representation should be granted by the Fair Work Commission (the Commission).

[4] Section 596 of the Act provides as follows:

“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.”

Factual contest

[5] Ms Di Blasi was dismissed on 7 January 2019 after Coles determined, on the balance of probabilities, that the following occurred at its Coomera City Centre Store:

(a) On 20 December 2018 Ms Di Blasi conducted a ‘Tender Loan’ to ‘top up’ a nearby cash register the amount of $400;

(b) Ms Di Blasi used Coles’ ‘Changemaster’ machine to dispense $400 in a small plastic canister;

(c) Ms Di Blasi bent down to retrieve the canister containing $400, and at the same time picked up a packet of marshmallows in a basket on the floor in front of the Changemaster;

(d) Ms Di Blasi appeared to be opening the marshmallows whilst removing the cash at the same time from the canister;

(e) Ms Di Blasi briefly stepped out of view of the CCTV cameras and then returned the empty canister into the return slot in the Changemaster;

(f) Ms Di Blasi placed the cash on her person or concealed it in a location for collection at a later time.

[6] Ms Di Blasi strongly denied the accusation and the findings made by Coles.

Coles’ submissions

s.596(2)(a)

[7] Relevant to the consideration required in s.596(2)(a), Coles submitted that where the case involves a significant contest between the parties as to the facts of what occurred and what should be made of those facts, and the determination of the matter would require weighing of the evidence received, the Commission should exercise its discretion to grant leave. 1

[8] Coles submitted that at the heart of this matter is a very significant factual contest, of which the outcome of the Commission’s findings will have significant implications for both parties.

[9] It was submitted that the evidence relating to Ms Di Blasi’s conduct is not straightforward, particularly when evidence of the processes relating to the Changemaster machine, and business records of a third party, Linfox Armaguard Pty Ltd will be necessary.

[10] It was submitted that the principles in Briginshaw v Briginshaw 2 will need to be analysed where the CCTV footage is suggestive, but not conclusive proof of theft. If the conduct as alleged cannot be established to the relevant standard, it is submitted that additional legal complexity will arise from questions such as to whether Ms Di Blasi’s failure to account for the $400, which is likely to amount to a breach of policy, might still constitute a valid reason.

s.596(2)(b)

[11] Coles employs one in-house legal counsel for employment matters, Ms Sarah Blackman, who is responsible for managing claims where Coles employs approximately 144,000 employees. Ms Blackman works part-time, is based in Melbourne and has carer’s responsibility for young children.

[12] Ms Blackman does not have any experience of conducting substantive hearings herself in the Commission or in other jurisdictions. It was submitted that Ms Blackman would be unlikely to be effectively represent Coles.

[13] Coles employs a small number of human resources personnel who are based in Brisbane, but none of those personnel have any experience as an advocate in Commission hearings. It was submitted that these personnel are unlikely to be able to represent Coles in a manner which “creates a ‘striking impression’, or which has an ‘impressive’ effect or which is ‘powerful in effect’.” 3

Ms Di Blasi’s submissions

[14] On 6 April 2019, Ms Di Blasi wrote the following to the Commission:

“I am writing in regards to the legal representation acting for Coles.

I am writing to dispute and object to the legal representation. I believe it is an unfair situation and a substantial disadvantage for myself. In a matter that is alreasy [sic].

I am acting alone in this matter and up against a big company. I am without any legal advice or representation and I believe it makes this matter more complicated.”

[15] On 18 April 2019, Ms Di Blasi wrote to the Commission:

“I refer to the above matter and file for submission and addres s.596 of the fair work act 2009 (the act) for my request to object to the respondent having legal representation a the upcoming hearing.

I believe it is an unfair advantage as the respondent already have a HR representative team who is assisting the dismissal matter along with the senior management team and loss prevention team for Coles.

I am unable to seek legal representation due to personal, financial circumstances and I am forced to work and defend this matter on my own.

I am aware that a legal representative could allow this matter to be dealt with more efficiently at the hearing, for the respondent, but I also believe it puts me, the applicant at a high disadvantage.

I appreciate your consideration for my objection request. [sic]”

Consideration

[16] The decision of Flick J in Warrell v Walton⁴ addresses the obligation to strike a balance between the objective of an informal determination process with equity and efficiency considerations depending on the circumstances of a particular matter:

‘[24] A decision to grant or refuse “permission” for a party to be represented by “a lawyer” pursuant to s 596 cannot be properly characterised as a mere procedural decision. It is a decision which may fundamentally change the dynamics and manner in which a hearing is conducted. It is apparent from the very terms of s 596 that a party “in a matter before FWA” must normally appear on his own behalf. That normal position may only be departed from where an application for permission has been made and resolved in accordance with law, namely where only one or other of the requirements imposed by s 596(2) have been taken into account and considered. The constraints imposed by s 596(2) upon the discretionary power to grant permission reinforce the legislative intent that the granting of permission is far from a mere “formal” act to be acceded to upon the mere making of a request. Even if a request for representation is made, permission may be granted “only if” one or other of the requirements in s 596(2) is satisfied. Even if one or other of those requirements is satisfied, the satisfaction of any requirement is but the condition precedent to the subsequence exercise of the discretion conferred by s 596(2): i.e., “FWA may grant permission...”. The satisfaction of any of the requirements set forth in s 596(2)(a) to (c) thus need not of itself dictate that the discretion is automatically to be exercised in favour of granting “permission”.

[25] The appearance of lawyers to represent the interests of parties to a hearing runs the very real risk that what was intended by the legislature to be an informal procedure will be burdened by unnecessary formality. The legislative desire for informality and a predisposition to parties not being represented by lawyers emerges, if not from the terms of s 596, from the terms of the Explanatory Memorandum to the Fair Work Bill 2008 (Cth)...’

[17] The decision to allow a party to be represented in a matter is discretionary; it is not automatic. The discretion afforded to the Commission will be exercised on the facts and circumstances of the particular case against the legislative tests.⁵

[18] When considering if a lawyer or paid agent representing a party would enable the matter to be dealt with more efficiently, taking into account the complexity of the matter, in my view, it requires a weighing-up exercise. The question is, in this case, would the lawyer enable the matter to be dealt with more efficiently, taking into account the complexity of the matter more than say, Ms Blackman or one of the Coles HR representatives?

[19] Ms Blackman is in Melbourne and works part-time. I am informed that she does not work on Wednesdays. This matter is listed for hearing on Thursday, 2 May and Friday, 3 May 2019. Whilst it is possible for Ms Blackman to represent Coles from Melbourne via video-link, I am mindful that she has not previously appeared in the Commission in arbitrated matters. Given the extensive cross-examination I expect will occur of Ms Di Blasi, I do not consider it to be satisfactory, in these circumstances, to have a first-time advocate cross-examine via video-link where scrutiny of CCTV footage is required.

[20] Relevant to Coles’ HR representatives, I have considered the evidence and examination of a witness from Linfox Armaguard Pty Ltd, Ms Deane Carmusciano, Customer Service Accounts Specialist. It appears to me that following Ms Di Blasi’s dismissal, Ms Carmusciano was asked to undertake a reconciliation of the Changemaster machine for the date 27 December 2018, and not the appropriate date 20 December 2018. It is not clear to me if the evidence ultimately provided by Ms Carmusciano is sufficient to cover the date of 20 December 2018. It may be necessary to adduce further evidence on this issue prior to the hearing date, and have Ms Carmusciano explain these issues during the hearing.

[21] With respect, I do not consider that Coles’ HR representatives, without any advocacy experience before the Commission will be able to efficiently deal with this complex evidentiary issue, nor conduct examination-in-chief and re-examination of a witness who is not a Coles employee.

[22] I do consider the matter to be a sufficiently complex issue, having regard to the findings made by Coles, on the balance of probabilities, of theft by Ms Di Blasi. I accept Coles’ submission relevant to the examination of the principles in Briginshaw v Briginshaw, and what might eventuate if the Commission is not so satisfied. Where it appears that Ms Di Blasi cannot provide an explanation for where the $400 went, it will be necessary to hear well-thought-out submissions from Coles.

[23] I am satisfied that the criteria in s.596(2)(a) has been met.

[24] Relevant to s.596(2)(b), I accept Coles’ submission that in these circumstances, leave should be granted as it would be unfair not to allow the person to be represented because Coles is unable to represent itself effectively. I foreshadow, however, that for future applications for the granting of leave before me by Coles, a very large employer, the mere suggestion that because Ms Blackman (or any other employee) has not ever appeared before the Commission, does not necessarily equate to an acceptance that Coles is unable to represent itself effectively. It would be prudent for Coles to have present during the hearing relevant observers who may be required, in future matters, to advocate for Coles. There is no better experience in learning how to effectively run an arbitrated matter in the Commission than to attend a contested hearing.

[25] It is only necessary that one of the criteria in s.596(2) be met. I have determined that s.596(2(a) and (b) have been met.

[26] For the reasons set out above, I exercise my discretion under s.596(2)(a) and (b) of the Act to grant permission for Coles to be represented by a lawyer. The Commission will, of course, afford to Ms Di Blasi all necessary and appropriate assistance at the hearing to ensure procedural fairness to her. There will be no disadvantage to Ms Di Blasi, and if at any time Ms Di Blasi has questions relevant to issues or processes before the Commission, this will be accommodated.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

<PR707231>

 1   H v Centre and Others[2014] FWC 6128.

 2   Briginshaw v Briginshaw (1938) 60 CLR 336.

 3   Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v UGL Resources Pty Ltd (Project Autora)[2012] FWA 2966 at [16].

4 [2013] FCA 291.

5 Rodgers v Hunter Valley Earthmoving Company Pty Ltd [2009] FWA 572.