Nathanial Zanker v Bench Excavation & Civil Construction Pty Ltd T/A Bench Excavation & Civil Construction

[2015] FWC 3229

[2015] FWC 3229

FAIR WORK COMMISSION

DECISION

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

Nathanial Zanker
v
Bench Excavation & Civil Construction Pty Ltd T/A Bench Excavation & Civil Construction
(U2015/3624)

DEPUTY PRESIDENT BARTEL ADELAIDE, 11 MAY 2015

Termination of employment - representation by lawyer

[1] Nathanial Zanker (the applicant) has made application pursuant to s.394 of the Fair Work Act 2009 (the Act) seeking an unfair dismissal remedy in relation to his dismissal from Bench Excavation & Civil Construction Pty Ltd (the respondent or the employer) on 17 February 2015. This decision deals with an application by the respondent for permission to be represented by a lawyer pursuant to s.596 of the Act. The applicant is unrepresented and opposes permission being granted.

[2] Mr Earls, the lawyer seeking permission to appear, made the following points in support of permission being granted:

• The respondent is a small business with no expertise in industrial proceedings;



• The dismissal was based on serious misconduct and the respondent bears the onus of proof to substantiate that the misconduct occurred;



• The conduct that formed the basis of the dismissal involves technically complex matters;



• The documents filed by the applicant provide limited detail concerning the incident for which he was dismissed;



• The involvement of a legally qualified advocate will assist in the efficient conduct of the hearing.

[3] The applicant stated that he has no legal training or experience in presenting a case and is concerned that he will be disadvantaged if the employer is legally represented. He submitted that the involvement of a lawyer will not assist in dealing with the technical aspects of the evidence as Mr Earls has no expertise in that area.

Consideration

[4] Section 596 of the Act is in the following terms:

“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.

(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 employersthat 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.”

[5] Section 596 involves an exercise of discretion by the FWC but the discretion to grant permission to be represented by lawyer or paid agent can only be exercised if one or more of the circumstances in ss.596(2)(a), (b) or (c) are satisfied. 1

[6] I understand that the applicant was dismissed due an alleged failure to correctly pressure test and confirm the integrity of a gas main and then signed off that the pressure test had been passed. This was discovered when a gas leak was investigated. The employer contends that the applicant’s actions could have had serious and potentially fatal consequences.

[7] The employer has submitted a range of documentation attached to witness statements including the circumstances of and the investigation into the incident by the respondent and the contractual obligations of the employer to the principal on whose behalf the work was performed.

[8] The applicant appears to raise issues of procedural unfairness including the failure of the employer to complete a thorough investigation of the matter. It is not clear from the documents filed by the applicant as to whether he disputes the conduct alleged by the employer.

[9] Each case is to be considered on its particular facts and circumstances. I am not satisfied that the present matter is sufficiently complex to warrant representation or that the respondent will not be able to effectively represent itself in the proceedings, especially given the fact that that it will have access to the advice and assistance of Mr Earls in the preparation of its case. There are no jurisdictional issues or other matters which involve complex issues of law. I do not consider that, in these circumstances it would be unfair to refuse the employer permission to be represented. The application is therefore declined.

DEPUTY PRESIDENT

 1   I have had regard to the consideration of s.596 in Warrell v Walton [2013] FCA 291 at [24] per Flick J.

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