[2016] FWC 948

The attached document replaces the document previously issued with the above code on 17 February 2016.

Filed with incorrect date

Associate to COMMISSIONER SIMPSON

Dated 22 February 2016

[2016] FWC 948

FAIR WORK COMMISSION

DECISION

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

Ms Grace Mazi
v
Ozcare
(U2015/12332)

COMMISSIONER SIMPSON

BRISBANE, 17 FEBRUARY 2016

Applications for Legal Representation– Permission granted to Applicant and Respondent.

[1] Both parties have filed submissions seeking permission to be legally represented in a matter concerning an application under s 394 of the Fair Work Act 2009 (“the Act”) by Ms Grace Mazi (“the Applicant”) who alleges that the termination of her employment with Ozcare (“the Respondent”) was unfair.

[2] 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 FWC.

(2) FWC may grant permission for a person to be represented by a lawyer or paid agent in a matter before 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 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.

[3] The Applicant’s witness statement runs to 13 pages with 31 attachments. The hearing is set down for two days. The reasons for termination involve a number of allegations in respect of the Applicant’s conduct and performance. The Respondent is calling a number of witnesses to give evidence. It is apparent the hearing will involve cross examination of witnesses concerning a range of factual disputes as elements of the alleged conduct are contested.

[4] The matter is sufficiently complex that it is appropriate to grant permission for both parties to be legally represented as it will enable the matter to be dealt with more efficiently. Accordingly both applications for permission to be legally represented are granted.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Ms Grace Mazi has brought an application against Ozcare, the provider of in-home aged care services. The dispute revolves around allegations of professional misconduct, including mistreatment and neglect of an elderly client. The case was heard in the Federal Circuit and Family Court of Australia. The primary legal issues that the court had to address were whether Ms Mazi was entitled to legal representation and whether Ozcare was entitled to representation in response.

The court determined that both parties had a right to be legally represented due to the seriousness of the allegations and the potential implications for both personal and professional reputations. The court recognised that the proceedings involved complex matters of evidence and professional conduct, which necessitated expert legal assistance. Additionally, the court considered the financial and emotional burden these proceedings could impose on the parties involved, further justifying the need for legal representation.

In granting permission for both parties to be legally represented, the court emphasised the importance of ensuring that the proceedings were conducted fairly and justly. The court recognised that proper legal representation would enable both parties to adequately present their cases, challenge evidence, and protect their respective interests. The decision to allow representation was also influenced by the potential impact on the outcome of the case, as both parties required expert legal guidance to navigate the intricacies of professional misconduct claims.

The court ordered that both Ms Mazi and Ozcare be permitted to secure legal representation for the purposes of the application and any subsequent proceedings. This decision ensures that the legal process remains equitable and that both parties have the opportunity to present their cases effectively.

Ms Grace Mazi v Ozcare

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established