Paul Braughton v Coca-Cola Amatil Limited T/A Coca-Cola Amatil

[2017] FWC 2888

[2017] FWC 2888

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Paul Braughton
v
Coca-Cola Amatil Limited T/A Coca-Cola Amatil
(U2017/1573)

COMMISSIONER SIMPSON BRISBANE, 25 MAY 2017

Application for an unfair dismissal remedy.

[1] This decision involves an application for permission to be legally represented in an unfair dismissal application made pursuant to s.394 of the fair Work Act 2009 (the Act). The unfair dismissal application was made by Mr Paul Braughton who alleges that the termination of his employment with Coca-Cola Amatil Limited T/A Coca-Cola Amatil (Coca-Cola) was unfair.

[2] The unfair dismissal matter was listed for Mention on 11 May 2017, and for Hearing on 31 May 2017 and 1 June 2017 in Brisbane. At the Mention, the Applicant’s representative who is entitled to appear on behalf of the Applicant in accordance with section 596(4) of the Act opposed Coca-Cola being legally represented.

[3] I provided the parties with the opportunity to make submissions as to whether the Fair Work Commission (FWC) should grant permission for Coca-Cola to be represented by a lawyer.

[4] Section 596 reads 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 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 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.”

Efficiency

[5] Coca-Cola submitted that the involvement of legal practitioners would allow the matter to be dealt with more efficiently, taking into account the complexity of the matter. It submitted the matter is likely to involve:

(a) numerous highly disputed facts;

(b) evidence in chief lead by Mr Braughton’s representative constituting three witnesses, all of whom will be required for cross examination;

(c) objections by Coca-Cola to the admissibility of parts of the Mr Braughton’s evidence in chief;

(d) evidence in chief being lead by Coca-Cola constituting a further seven witnesses, many of whom will be required for cross examination;

(e) objections by Mr Braughton to the admissibility of parts of Coca-Cola’s evidence in chief; and

(f) oral submissions by the Applicant and Respondent at the conclusion of the evidence. 1

[6] Coca-Cola submitted that in view of the above factors, the matter would benefit from the involvement of legal practitioners. Coca-Cola cited Applicant v Respondent 2where Sams DP found:

“Invariably, I have found the skills and expertise of an experienced industrial legal practitioner will be more of a help than a hindrance, particularly bearing in mind a legal practitioner’s professional obligations to the Commission and the Courts…

Informality is one thing, but there is still a statutory foundation which must be observed in the exercise of all the Commission’s powers and functions. In my experience, the prospects of a case being run more efficiently and focused on the relevant issues to be determined, is more likely where competent legal representation is involved.” 3

[7] Mr Braughton submitted that the matters to be dealt with in the substantive proceedings, such as disputed facts, are routinely determined by the Commission, and that substantive proceedings do not involve complex jurisdictional matters or any novel matters of law. Mr Braughton submitted that any complexity in the proceedings is introduced by the Coca-Cola, such as matters relating to “admissibility” of evidence. 4

[8] Mr Braughton submitted that as the FWC is not bound by the rules of evidence, the concepts put forward by Coca-Cola regarding admissibility of evidence are not relevant.

[9] Mr Braughton submitted that the comments of Sams DP in Applicant v Respondent 5 have been countered by Commissioner Ryan in the following terms:

“[T]he presence of lawyers and paid agents as representatives of a party in a proceeding before the Commission can and often leads to more protracted and complex hearings. Lawyers and paid agents will often cross examine for the sake of ensuring that they have covered every and any possible relevant issue so as comply with their obligation to their client.” 6

[10] Mr Braughton also made submissions that Coca-Cola’s legal representation had not shown that the matter had been dealt with more efficiently to this point.

[11] The hearing is listed for two days with a total number of 10 witnesses. I am satisfied that this matter is sufficiently complex to exercise my discretion in favour of granting the Respondent legal representation on the basis that it will lead to greater efficiency in dealing with the matter. Whilst it is only necessary for the FWC to be satisfied of one of the elements set out in section 596(2) in order to decide to exercise discretion in favour of the grant of permission to appear, as each subsection was in dispute for completeness I will address each of them.

Ability for Coca-Cola to effectively represent itself

[12] Coca-Cola also submitted that it would be unfair not to allow it to be represented because it does not employ a suitable person to represent itself. It submitted that although it has a number of human resources practitioners, none of these practitioners are experienced in advocacy. Mr Braughton submitted that Mr Michael Van Beest would take carriage of the matter, and is the Australian “arm” of a large multi-national organisation. Mr Braughton further submitted that a company the size of Coca-Cola, should be capable of finding an appropriate person to defend the matter.

[13] On the basis of the Respondents submission that its other human resources staff do not have relevant advocacy or tribunal experience I am persuaded that is a basis to grant the Respondent legal representation.

Fairness between the parties

[14] Finally the Respondent submitted that it would be unfair not to allow it to be legally represented taking into account fairness between it and Mr Braughton, given the Mr Braughton will be represented by an experienced Industrial Officer of a well-established employee association, who is entitled to appear in accordance with s.596(4)(b)(i) of the Act. Mr Braughton submitted that no unfairness would be created, and noted that Mr Braughton would not be represented by a legal practitioner.

[15] It is common for the FWC to give consideration to the skill and experience of advocates who appear by way of right under section 596(4) relative to the opposing party’s in-house capacity in determining whether permission should or should not be granted. It is evident Mr Braughton’s representative is an experienced advocate in the FWC, and that Coca-Cola submitted it has no in-house capacity approximating Mr Braughton’s representative’s level of skill and experience. On that basis I am satisfied it would be unfair not to allow Coca-Cola to be represented by a lawyer taking into account fairness between it and the Applicant.

COMMISSIONER

 1   Respondent’s Submissions for Permission to Appear dated 12 May 2017.

 2   [2014] FWC 2860.

 3   Ibid at [18] – [20].

 4   Applicant’s Submissions on Legal Representation dated 17 May 2017.

 5   [2014] FWC 2860.

 6   Barkho v Dairy Country [2015] FWC 8549 at [31].

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