Mrs Colleen Manwarring v Coffs Coast Health & Community Care

[2014] FWC 1779

[2014] FWC 1779

FAIR WORK COMMISSION

DECISION

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

Mrs Colleen Manwarring
v
Coffs Coast Health & Community Care
(U2013/3720)

COMMISSIONER CARGILL SYDNEY, 17 MARCH 2014

Application for relief from unfair dismissal.

[1] This decision arises from an application for an unfair dismissal remedy pursuant to section 394 of the Fair Work Act 2009 (the Act) by Ms C Manwarring in relation to the termination of her employment by Coffs Coast Health and Community Care (CCHCC).

[2] CCHCC seeks permission for it to be represented in the arbitration of the matter by its legal representatives McCabes Lawyers Pty Ltd. Ms Manwarring objects to this. Written submissions on the issue have been made by both parties.

[3] In brief summary CCHCC bases its case on both paragraphs (a) and (b) of section 594(2) of the Act. It says that legal representation would allow the matter to be dealt with more efficiently. It notes the length of the applicant’s submissions. CCHCC says that legal representation will assist in identifying relevant issues in a timely manner and ensure that cross examination will only explore matters arising out of the evidence.

[4] CCHCC notes that it is small in size with three full time employees, 31 part-time employees and 13 casuals. It has no specialist human resources staff or office manager and regularly engages lawyers and external consultants as a result of its lack of employment expertise. CCHCC notes that if permission is not granted it may lead to delays in the proceedings while it seeks advice.

[5] CCHCC notes that the applicant had been previously legally represented but had decided to continue to hearing unrepresented. It says it should not be disadvantaged as a result of the applicant’s decision in this regard.

[6] Ms Manwarring acknowledges that there are many issues surrounding the dismissal but says that the matter itself is not complex. She says that as she is not sure what documentation might be required for the hearing she thought it prudent to provide all that she had. Ms Manwarring notes that much of it may not be necessary.

[7] Ms Manwarring disputes that legal representation will reduce the time spent in cross examination. The presiding member will be able to direct parties to focus on relevant issues. Ms Manwarring notes that she is the only witness in her case. I note that the applicant has since provided additional material which indicates she may call another witness.

[8] Ms Manwarring also disputes CCHCC’s submission that it is unable to effectively represent itself. She notes that the organisation has a human resources consultant and says that the Chief Operations Officer effectively fills the role of office manager.

[9] Ms Manwarring denies that she ever intended to have legal representation for the hearing. She acknowledged that she had sought legal advice and had legal assistance in requesting documentation from CCHCC. Ms Manwarring says that she is unable to afford legal representation and granting permission would provide CCHCC an unfair advantage and greatly disadvantage her.

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

“(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.”

[11] I have reviewed all of the material on the file including the applicant’s witness statement, submissions, annexures and additional documents received on 14 March 2014. I note that the respondent’s material is not due to be filed until 20 March. It appears that the matter does have certain complexities. In the circumstances I consider that the matter will be dealt with more efficiently if CCHCC is legal represented.

[12] Permission is therefore granted pursuant to section 596(2)(a) of the Act. Of course if Manwarring wishes to be legally represented at the hearing permission would also be given for that purpose.

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