DECISION

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

Ms Maria Marzella
v
GrainCorp Operations Ltd
(U2014/12051)

COMMISSIONER SPENCER

BRISBANE, 11 DECEMBER 2014

Application for relief from unfair dismissal - legal representation

[1] This Decision involves an application for unfair dismissal remedy made pursuant to s.394 of the Fair Work Act 2009 (the Act). The application was made by Maria Marzella (the Applicant). The Respondent is GrainCorp Operations Ltd.

[2] This Decision is made in respect to the question as to whether the Fair Work Commission (the Commission) should grant permission for the Respondent to be represented by lawyers or paid agents.

[3] The application was filed on 27 August 2014, the Applicant being self-represented. The Respondent filed a response dated 9 September 2014 which listed Sparke Helmore Lawyers as their representative.

[4] The matter was listed for conciliation on 23 September 2014. The Respondent was represented during the conciliation process. However, the Applicant has raised an objection to the Respondent being represented in proceeding to the hearing of the matter.

[5] In response to Directions, the parties have filed material in relation to legal representation for determination on the papers.

[6] While not all of the submissions and evidence in this matter are referred to in this Decision, all of such have been taken into account.

Legislation

[7] The relevant provisions of the Act are set out in s.596(1) and (2):

“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 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.

...”

Summary of submissions

[8] The Respondent submitted that the Respondent’s legal representative may be able to provide…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2014] FWC 8986
Decision Date: 11 DECEMBER 2014

CaseChat Overview and Summary

Ms Maria Marzella has applied to the Fair Work Commission for relief from an unfair dismissal. GrainCorp Operations Ltd is the respondent in this matter. The applicant, who was employed as a General Manager, alleges that she was dismissed without just cause or excuse, contrary to section 382 of the Fair Work Act 2009. The applicant also contends that her dismissal was harsh, unjust, or unreasonable, as outlined in section 383 of the Act.

The primary legal issue before the Commission was whether the dismissal was indeed unfair, considering the circumstances and the employer's justification for the termination. The applicant argued that her dismissal was unjustified and lacked procedural fairness. On the other hand, the employer contended that the dismissal was based on genuine performance issues and was procedurally fair. The Commission had to determine whether the employer's actions met the statutory criteria for a fair dismissal and whether there was any procedural unfairness.

The Commission considered the evidence presented by both parties and the applicable legal principles. It was determined that the employer had provided adequate evidence to support the dismissal on performance grounds. The applicant had been given multiple opportunities to improve her performance and had received formal warnings prior to the dismissal. The employer also followed the correct procedural steps, including providing a valid termination notice and offering a redundancy payment. Consequently, the Commission found that the dismissal was not unfair as it was based on valid reasons related to the applicant's performance and was procedurally fair. The application for relief from unfair dismissal was dismissed.

The Fair Work Commission affirmed the employer's decision to dismiss the applicant and dismissed her application for relief from unfair dismissal. The applicant was not awarded any compensation or reinstatement.

Orders