Ms Emily Oratis v Melbourne Business School Ltd T/A Melbourne Business School

[2014] FWC 7994

[2014] FWC 7994

FAIR WORK COMMISSION

DECISION

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

Ms Emily Oratis
v
Melbourne Business School Ltd T/A Melbourne Business School
(U2013/14884)

COMMISSIONER BISSETT MELBOURNE, 12 NOVEMBER 2014

Application for relief from unfair dismissal - Application to revoke permission to be represented by a 'lawyer or paid agent' pursuant to s.596 of the Fair Work Act 2009.

[1] Ms Emily Oratis has made an application under s.394 of the Fair Work Act 2009 (the Act) for relief from unfair dismissal in respect of her former employment with the Melbourne Business School (MBS).

[2] MBS has previously sought, and I have granted, permission for it to be represented by a lawyer 1 (the initial decision). Ms Oratis appealed this decision. That appeal was unsuccessful2 but in its decision the Full Bench said:

[8] We note that Ms Oratis has submitted to us that “The information/material was provided in addition to the case materials and the Applicant will not be relying upon them in the court proceedings to prove the Unfair Dismissal case”. That submission, however it is to be understood, was not made before the Commissioner, and cannot therefore be a proper basis to find appellable error. We reject the first ground of appeal. However, we observe that if, at the hearing of her unfair dismissal application, Ms Oratis makes it clear that she does not intend to rely on the material filed (or a substantial portion of it), it would be open to her to make an application under s.603 of the Act that the Commissioner’s order granting permission for the MBS to be represented by a lawyer be revoked. The Commissioner could then consider that application based upon the facts applying at that time.

[underlining added]

[3] Ms Oratis has, as the result of a mention of this matter to deal with outstanding requests of the Commission to issue orders to produce documents and/or attend, now re-filed the material previously filed by her and removed some of the materials on which she had previously sought to rely. In accordance with the observation of the Full Bench on 29 October 2014 she applied to have the permission previously given to MBS revoked. I issued directions in relation to this matter and have determined the application on the basis of written submissions of the parties.

Submission of MBS

[4] MBS relies on its previous submission in respect to representation. In addition it submits that the removal of material no longer relied on by Ms Oratis does not substantially alter the case she will run nor that MBS will need to defend and should not cause the Commission to revoke its earlier decision.

[5] MBS says that Ms Oratis has removed from materials previously filed matters relating to performance counselling that occurred in October 2013, matters leading up to that performance counselling, material related to an earlier bullying complaint and a related grievance. However MBS says that some material relating to these incidents still remains in the re-filed material of Ms Oratis.

[6] MBS says that Ms Oratis has filed additional material including matters relating to alleged bullying by the General Manager Human Resources (GM HR) and that further material has been produced to Ms Oratis as a result of Orders to produce issued by the Commission. This material, it submits, adds to the complexity of the matter.

[7] MBS also submits that, arising from the witness statement of Mr Flipo, matters associated with the legal relationship between MBS and the University of Melbourne (University) and whether or not they are associated entities are complex legal and factual matters that will need to be explored at the hearing.

[8] MBS submits that it does not employ staff experienced at representing MBS in proceedings such as these and that if permission to be represented is revoked MBS will have to be represented by the GM HR. He is also a witness in the proceedings. MBS says it is relevant that Ms Oratis says she has a grievance complaint against the GM HR, has threatened to call the police in respect of his behaviour, says he has antagonised and tried to provoke her, and she has made a complaint to the Commission about him alleging that he bullied and intimidated her. 3 In these circumstances MBS says it would be inappropriate for the GM HR to represent MBS as he would be required to cross examine Ms Oratis.

[9] MBS submits that it would be unfair to revoke permission six months after it was granted and two weeks prior to the hearing of the substantive application.

Submission of Ms Oratis

[10] Ms Oratis submits that MBS should rely on its own internal resources and those of the University. She says that MBS has access to resources of the University was demonstrated when the Dean of MBS did not want to participate in discussions with her in relation to her complaint to the Human Rights Commission (HRC) ‘so discussions were initiated by MBS and the HRC conciliator [so] that Prof. Glyn Davis, Vice-Chancellor & Principle, University of Melbourne and Board Member at MBS would participate [instead]’. Further she says that in ‘the true nature of justice and fairness’ MBS should rely on its own and the University’s resources. Ms Oratis also says that in the first decision on representation the Commission agreed that ‘MU [Melbourne University’s] resources are something which could have been considered.’

[11] Ms Oratis submits that, in removing much of the material, she has sought to ensure that the matter can be dealt with efficiently. To this end she attaches to her submission on this matter a statement of facts which she says she will rely on at the hearing of her unfair dismissal application.

[12] Ms Oratis says that she ‘is open to removing more [material] should the Commissioner or Respondent feel it will assist the hearing’ and that she is ‘willing to remove any further materials which are deemed to be unrelated to the Act and will follow the Commissioner’s guidance at the hearing should, despite this, the hearing digress into unrelated matters.’

[13] Ms Oratis says that more unfairness would be created should the decision on representation not be revoked. She submits that Mr Flipo’s evidence does not add any complexity to the matter. She again raises the unfairness of MBS accusations that she was unable to complete tasks due to her English ability and submits that this has stopped a settlement in this case. She also submits that the Deputy Dean has destroyed documentation relating to the restructure. She submits that allowing MBS to be legally represented would not take into account the provision of the Act ‘where a person from a non-English speaking background or has difficulty reading or writing.’

[14] Ms Oratis submits that Mr Southward’s conduct (the GM HR) post 24 October 2013 (when her employment was terminated) remains relevant to the matter before the Commission. However she submits that ‘given that MBS and Mr Southward insist on his participation at every interaction, the Applicant feels it would be better to have Mr Southward with a role to play and a job to do at the FWC rather than have a lawyer do the work on his behalf as ‘idle hands are the devil’s workshop’.’

[15] Ms Oratis submits that she is still determining the relevance to her case of CCTV footage from the stay proceedings (relating to her appeal) at the Commission.

Consideration

[16] The application by Ms Oratis is that I revoke the permission I have granted to MBS to be represented by a lawyer in respect to her unfair dismissal application.

[17] Having considered the submissions from the parties I decline to revoke that decision for the reasons given below.

[18] In my decision in which I granted permission to MBS to be represented I said:

I note that MBS is a school in the Faculty of Business and Economics in the University of Melbourne. To that extent it would suggest that there is wider expertise within the University available to MBS beyond the GM HR. However, no submissions have been received on this matter. I have therefore not taken it into account in making my decision. 4

[19] This observation is not accurately reflected in the submissions of Ms Oratis. It does not suggest that MBS has access to University resources. Again, no evidence has been produced in this application to demonstrate that MBS has access to resources of the University such that I should change the view expressed in the initial decision. Whilst Professor Davis may have been involved in conciliation in respect of Ms Oratis’ complaint to the Human Rights Commission I note that, as well as being Vice-Chancellor of the University, he is also a member of the board of MBS. I do not know in what capacity he participated in that conciliation. That he did participate is not enough to convince me that MBS has access to the expertise within the University such that it could be represented by them.

[20] There is no evidence to support that Ms Oratis is from a non-English speaking background such that the matter she raises is relevant to my consideration. I reject her submission on this point and adopt the reasoning of the Full Bench where it said:

Section 596(2)(c) is one of the jurisdictional bases upon which permission for representation might be granted; it is not a ground requiring refusal of permission. We accept that the capacity of a party to speak, write or understand English might be a relevant consideration in the exercise of the discretion under s.596(2) (once one of the three jurisdictional prerequisites has been satisfied). However, we cannot identify that it was clearly put to the Commissioner by Ms Oratis that the grant of permission to the MBS would cause unfairness to her because of any incapacity on her part to speak, write or understand English. Having read Ms Oratis’s written submissions and heard her oral submissions, we do not consider that she suffers from any incapacity in this respect. 5

[21] I am aware of a complaint that Ms Oratis has made to the Commission with respect to the behaviour of the GM HR during the hearing of her stay application. In correspondence to my Chambers in October 2014 Ms Oratis indicates that she has spoken to the police/magistrates court about whether the GM HR’s conduct was legal. She also asks the Commission how it will keep her family safe during any proceedings in the Commission.

[22] Whilst Ms Oratis suggests it is better to give the GM HR ‘a role to play’ I am not convinced this is grounds to sufficiently override concerns she has previously expressed with respect to him and does not provide a basis on which I consider I should revoke my decision. In any event this appears a self serving submission by Ms Oratis. Given her complaint regarding the conduct of the GM HR it does not appear appropriate for MBS to be represented by him in the hearing of her application. Were the GM HR to represent MBS he would need to be present in the courtroom during the totality of proceedings. He would be required to cross examine Ms Oratis on her evidence and Ms Oratis would be required to cross examine him. Throughout her submissions there is, in addition, a clear level of antipathy evident by Ms Oratis to the GM HR and his role in the decision to terminate her employment and events following this. This could clearly adversely affect the ability to have the matter dealt with efficiently.

[23] The unfair dismissal application goes to the question of whether Ms Oratis’ redundancy is a genuine redundancy for the purposes of s.389 of the Act. Section 389 requires a consideration of the reasonableness of redeployment. This will involve a consideration of the legal relationship between MBS and the University. The determination of this issue will go beyond the arrangements of convenience between the organisations identified by Ms Oratis and will involve arguments of fact and legal relationships.

[24] Whilst Ms Oratis has taken steps to remove some of the extensive material previously filed with the Commission there is still substantial material on which she relies. This includes audio recordings of conversations and may include, on the basis of her submission on this application, CCTV footage which has not yet been filed. The admissibility of this material and the extent to which it can be relied on has not yet been resolved and is a matter that will need to be addressed during the hearing of the unfair dismissal application.

[25] Ms Oratis has lodged further material with her submission on this matter consisting of a ‘statement of facts’ she suggests will allow the matter to be dealt with more efficiently. A perusal of this document suggests it is not a statement of facts but rather a mixture of facts, suppositions, assertions and submissions. Whilst I may accept this as a timeline of events (subject to submissions of MBS) it is not clear how it will allow the matter to be dealt with more efficiently. It does not provide a basis on which to revoke my decision.

[26] It is up to Ms Oratis to bring before the Commission what she considers relevant to her application. It is not to me to advise Ms Oratis on what, of the remaining material, is relevant to her case (although of course such a decision may be reached by me following the hearing of submissions and evidence of the parties). This revocation application has only arisen because she indicated to the Full Bench that she did not intend to rely on all the material she had filed and because she was prompted on this at the recent mention. Whilst the Commission’s Fair Hearing Practice Note indicates some assistance the Commission may provide to an unrepresented party, this needs to be done in the context of ensuring proceedings are conducted in an impartial manner. This places some limits on what advice and assistance can be provided to Ms Oratis, particularly where assistance is sought outside the hearing of the matter, and goes to the evidence that she might rely on amongst what she has filed.

Conclusion

[27] In coming to my conclusion that I should not revoke my decision I have taken into account the basis on which permission to be represented may be granted and the basis on which I made my initial decision to grant representation. However, this is not an application that permission be granted, rather that I should revoke my decision to grant such permission. On the basis of the material before me and the submissions of the parties I am not satisfied that circumstances have changed to such an extent that my initial decision should be revoked.

[28] I do remain satisfied, for the reasons given above, that there remains complexity in this matter such that it could be dealt with more efficiently if permission remained for MBS to be represented by a lawyer or paid agent.

[29] The application by Ms Oratis is refused.

COMMISSIONER

Written submissions:

Respondent: 5 November 2014

Applicant: 14 October 2014.

 1   [2014] FWC 2838.

 2   [2014] FWCFB 3869.

 3   Ms Oratis email to Commission and MBS lawyer, 17 October 2014.

 4   [2014] FWC 2838, [19].

 5   [2014] FWCFB 3869, [10].

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