Ms Amy Field v The Returned & Services League (Mount Gambier Sub-Branch & Memorial Club) Inc T/A Mount Gambier Community RSL
[2011] FWA 4061
•7 JULY 2011
[2011] FWA 4061 |
|
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Ms Amy Field
v
The Returned & Services League (Mount Gambier Sub-Branch & Memorial Club) Inc T/A Mount Gambier Community RSL
(U2011/5458)
DEPUTY PRESIDENT BARTEL | ADELAIDE, 7 JULY 2011 |
Termination of employment - representation by lawyer
[1] This decision deals with an application pursuant to s.596 of the Fair Work Act 2009 (the Act) for permission for Ms Amy Field (the applicant) to be represented by a lawyer in her application for an unfair dismissal remedy. Mr Tim Kenny, General Manager of the Mount Gambier Community RSL (the respondent or employer), opposes such permission being granted.
[2] This matter has been determined on the written submissions of the parties, which were filed in accordance with directions issued by the Tribunal. The submissions on behalf of the applicant were filed by Ms Samantha Harvey of the South East Community Legal Service, who is seeking permission to appear.
[3] The relevant provisions of s.596 of the Act are 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 FWA (including by making an application or submission to FWA on behalf of the person) by a lawyer or paid agent only with the permission of FWA.
(2) FWA may grant permission for a person to be represented by a lawyer or paid agent in a matter before FWA 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 FWA 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.
...
(4) ...”
[4] Mr Kenny stated that he understood that the representation provisions of the Act are directed to reducing costs of litigation wherever possible, and that it would have to be an extraordinary situation in order for permission to be represented by a lawyer or paid agent to be granted. He submitted that allowing representation in this case would see paid representation become the norm in Fair Work Australia proceedings, which is contrary to the statutory charter to conduct proceedings quickly and without unnecessary technicality.
[5] Mr Kenny contended that Ms Field failed to satisfy the requirements of s.596(2) of the Act. He submitted that the matter was not of great complexity and Ms Field could represent herself as effectively as the RSL could represent itself.
[6] Mr Kenny also expressed concern that allowing paid representation for the applicant puts him at a disadvantage in terms of fairness as and between the parties on the presentation of their respective cases or puts the respondent at a financial disadvantage if it sought to overcome this inequality by engaging paid representation.
[7] Ms Harvey submitted that representation would allow the matter to be dealt with more efficiently, taking into account the complexity of the matter. It was argued that the unfair dismissal application raised complex legal issues surrounding whether a dismissal occurred and that there were complex factual disputes involving a number of potential witnesses 1. Ms Harvey suggested that legal representation would assist the Tribunal by ensuring that only relevant evidence was led.
[8] In addressing s.596(2)(b) of the Act, Ms Harvey noted that the applicant was employed as a barperson/waitress and that she had no human resource, management or court experience. She submitted that the applicant would be prejudiced by an inability to effectively elicit the appropriate evidence, cross-examine the respondent’s witnesses or make the necessary legal arguments to make out her case. The need for appropriate representation was said to be bolstered by the fact that the applicant lived and worked in the small community of Mt Gambier and the outcome of the trial was of more importance to her reputation and future livelihood than would otherwise be the case. Further, Ms Harvey stated that as Mr Kenny was the direct manager of the applicant, there is an inherent power imbalance in the relationship.
[9] In reply, Mr Kenny stated that the case was not complex and the only issue that falls for determination is whether the applicant was dismissed. It was submitted that allowing the applicant to be represented would lead to a “… greater degree of unfairness between myself and Ms Harvey than any that may or may not exist between myself and Ms Fields.”
Consideration
[10] According to the Conciliator Report on the Tribunal’s file, the respondent contends that there was no dismissal at the initiative of the employer. Having read the application filed by the applicant and the employer’s response thereto, it appears that a number of consecutive but potentially different employment arrangements were in place during the course of the applicant’s employment. The final arrangement that the respondent sought to implement is alleged by the applicant to have constituted a dismissal. The reasons relied on by the employer in implementing the ‘final’ employment arrangement are also challenged by the applicant, and it appears that this aspect of the case will be the subject of competing witness evidence.
[11] Given the jurisdictional point in issue, I consider that the Tribunal would be assisted if at least one of the parties was represented.
[12] Contrary to Mr Kenny’s submissions, allowing the applicant to be represented by a lawyer in this case does not undermine the objects of the Act. Section 596(2)(a) of the Act contemplates that there will be circumstances where representation is in the interests of the efficient conduct of the proceedings and I consider that this is such a case.
[13] I accept Mr Kenny’s arguments that ss.596(2)(b) and (c) of the Act have not been made out. Had there not been the jurisdictional issue of whether a dismissal occurred I would refuse Ms Harvey’s application for permission to appear.
[14] I have previously advised that permission for the employer to be legally represented will be granted if sought, but in any event the Tribunal will provide assistance to the employer if it appears that it is disadvantaged by a lack of understanding of issues or court processes.
[15] For the reasons set out above, I exercise my discretion pursuant to s.596(1) of the Act to grant permission for the applicant to be represented by a lawyer.
DEPUTY PRESIDENT
1 On 17 June 2011, Ms Harvey confirmed that the applicant’s case involved 5 witnesses (including the applicant).
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