Ms Muria Roberts v TasTAFE - [2024] FWCFB 449

[2024] FWCFB 449

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.604 - Appeal of decisions

Ms Muria Roberts

TasTAFE

(C2024/7477)

VICE PRESIDENT GIBIAN
DEPUTY PRESIDENT CLANCY
DEPUTY PRESIDENT ROBERTS

SYDNEY, 6 DECEMBER 2024

Permission to be represented – Appeal against decision [2024] FWC 2586 of Commissioner Lee made on 26 September 2024– Appellant opposes grant of permission to be represented – s 596 of the Fair Work Act 2009 (Cth) – Whether representation would enable the Commission to deal with the matter more efficiently taking into account the complexity of the matter – Appeal involves legal questions of some potential complexity and a significant volume of evidentiary material – Representation will enable appeal to be dealt with more efficiently – Whether discretion should be exercised to grant permission – Whether unfairness will be caused to the appellant is permission is granted for the respondent to be represented – Permission to be represented granted to the respondent.

Introduction

Ms Muria Roberts (the appellant) seeks permission to appeal and to appeal from a decision of Commissioner Lee. The Commissioner’s decision arose from an application by the appellant for the Commission to deal with a general protections dispute involving an alleged dismissal under Part 3-1 of the Fair Work Act 2009 (Cth) (the Act). The Commissioner found that the appellant had not been dismissed for the purposes of s 386 of the Act and dismissed her application.

TasTAFE (the respondent) seeks permission under s 596 of the Act to be represented by Ms Bobbi Murphy of counsel in relation to the appeal, which is listed for hearing on Wednesday, 11 December 2024. The appellant opposes permission being granted. Both parties filed written submissions in relation to the question of representation. The respondent requested that the Full Bench determine the question of representation in advance of the hearing of the appeal. The Full Bench accepts that that course is sensible.

Section 596 of the Act sets out the circumstances in which the Commission may grant permission for a party to be represented in a matter before the Commission. The section 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 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…

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.

Continue reading Ms Muria Roberts v TasTAFE

Details

AGLC: Ms Muria Roberts v TasTAFE [2024] FWCFB 449
Case: [2024] FWCFB 449
Decision Date: 6 DECEMBER 2024

CaseChat Overview and Summary

In the case of Ms Muria Roberts v TasTAFE, the applicant, Ms Muria Roberts, sought permission to appeal a decision made by Commissioner Lee, who dismissed her application concerning a general protections dispute. The dispute involves an alleged dismissal under Part 3-1 of the Fair Work Act 2009. TasTAFE, the respondent, applied for permission to be represented by Ms Bobbi Murphy of counsel in the appeal process. The primary issue for the Full Bench to determine was whether permission should be granted to the respondent for legal representation in the appeal. This determination was made under s 596 of the Fair Work Act 2009, which outlines the conditions for permitting representation by a lawyer or paid agent before the Fair Work Commission.

The Full Bench evaluated whether the appeal's complexity and the substantial volume of evidentiary material justified granting permission for legal representation. Section 596(2) of the Act allows the Commission to grant permission only if it would enable the matter to be dealt with more efficiently or would be unfair not to allow representation. The Full Bench concluded that the appeal's potential complexity, due to the jurisdictional issue and the extensive evidentiary material, warranted granting permission for the respondent to be represented by counsel. This decision was made to ensure the efficiency of the appeal process and to facilitate a fair hearing.

In granting the respondent permission to be represented, the Full Bench considered the potential imbalance that might occur if only one party were represented by counsel. However, the Full Bench determined that the presence of counsel could assist in ensuring that all arguments are appropriately identified and explored, thereby maintaining fairness. Additionally, the Full Bench noted that permission for legal representation was previously granted at the first instance, and there was no evidence that this caused unfairness to the appellant. Ultimately, the Full Bench decided to exercise its discretion to grant permission for the respondent to be represented by a lawyer in the appeal proceedings.

Orders