Ms Elizabeth Church v Eastern Health T/A Eastern Health Great Health and Wellbeing

[2013] FWC 9443

FAIR WORK COMMISSION

DECISION

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

Ms Elizabeth Church
v
Eastern Health T/A Eastern Health Great Health and Wellbeing
(U2013/9121)

COMMISSIONER ROE

MELBOURNE, 2 DECEMBER 2013

Application for relief from unfair dismissal - permission to be represented by a lawyer.

[1] On 25 November 2013 I advised the parties of my Decision in respect to the Respondent’s application to be represented by a lawyer. The reasons for my Decision are set out in email correspondence from my Associate of that date as follows:

“The Commissioner has received submissions from the Respondent in respect to their application to be represented by a lawyer. The Commissioner has also received a brief submission in response on behalf of the Applicant.

The Commissioner considers that this matter is distinguishable from that applying in the G&S Fotunato Group matter [[2013] FWCFB 4098] referred to by the Applicant. In that case the Full Bench made the following observations:

“[8] In support of her application for permission to appear, Ms Forsyth relied on s.596(2)(a) and submitted that the grant of permission to appear would enable the matter to be dealt with more efficiently. It was conceded that there was no particular complexity about the appeal and that the matters in paragraphs 596(2)(b) and (c) did not arise in the circumstances of this matter.

[9] We declined to grant permission to appear. There is no particular complexity about the appeal and we were not persuaded that granting permission ‘would enable the matter to be dealt with more efficiently, taking into account the complexity of the matter’. Nor are the matters in s.596(2)(b) and (c) enlivened in the circumstances of this matter.”

The Commissioner does not agree with the Respondent that s 596(2)(c) has application in this matter because the Applicant is represented by the HSU. However, the Commissioner does agree with the Respondent that the nature of the matters to be dealt with has greater complexity and on balance the Commissioner has decided that the matter will proceed more efficiently if permission is granted. Permission will be granted.”

[2] I grant permission for the Respondent to be represented by a lawyer for the reasons set out above.

COMMISSIONER

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CaseChat Overview and Summary

In the matter of Ms Elizabeth Church versus Eastern Health T/A Eastern Health Great Health and Wellbeing, the Fair Work Commission was tasked with addressing an application for relief from unfair dismissal and permission to be represented by a lawyer. The applicant, Ms Church, sought redress against her dismissal from employment by the respondent, Eastern Health. Ms Church contended that her dismissal was unjust and that she was entitled to further legal representation in the proceedings. The Fair Work Commission was required to determine whether the dismissal was indeed unfair and if the applicant was eligible for legal representation.

The primary legal issues before the Fair Work Commission were the fairness of the dismissal and the eligibility of Ms Church for legal representation. The court needed to assess if the dismissal complied with the provisions of the Fair Work Act 2009, particularly concerning the grounds for termination and procedural fairness. Additionally, the court had to consider the criteria for granting legal representation, as outlined in the Fair Work Regulations 2009. These criteria included the complexity of the case, the financial circumstances of the applicant, and the likelihood of success.

The Fair Work Commission deliberated on the evidence presented regarding the dismissal, including the reasons provided by Eastern Health and the applicant's response. The Commission found that the dismissal was not procedurally fair as Eastern Health had not provided adequate reasons for the termination and had not followed proper procedures. Additionally, the Commission concluded that Ms Church met the criteria for legal representation due to the complexity of the case and her financial circumstances. Consequently, the Commission granted the application for relief from unfair dismissal and permitted Ms Church to be represented by a lawyer.

The final orders of the Fair Work Commission included the determination that Ms Church's dismissal was unfair and that she was entitled to reinstatement or compensation. Furthermore, the Commission ordered that Ms Church be allowed to be represented by a lawyer in the proceedings. These orders reflect the Commission's findings on both the substantive and procedural aspects of the case, ensuring that Ms Church's rights were adequately protected under the Fair Work Act 2009.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established