Philip Reimers v Safari Automotive Pty Ltd T/A Safari Automotive Pty Ltd

[2014] FWC 1792

The attached document replaces the document previously issued with the above code on 18 March 2014.

The following change has been made:

● In paragraph [1] reference to s.569 has been corrected to read s.596 of the Fair Work Act 2009.

Michelle Reynolds

Associate to Commissioner Bissett

Dated: 25 March 2014

[2014] FWC 1792

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Philip Reimers
v
Safari Automotive Pty Ltd T/A Safari Automotive Pty Ltd
(U2013/15371)

COMMISSIONER BISSETT

MELBOURNE, 18 MARCH 2014

Application for relief from unfair dismissal - permission to be represented by a lawyer or a paid agent.

[1] On 7 March 2014 the Respondent’s representative gave notice that it would seek permission pursuant to s.596 of the Fair Work Act 2009 (the Act) to represent the Respondent in the hearing of the above application scheduled for 20-21 March 2014.

[2] On 11 March 2014 I issued directions for the filing of submissions by the Respondent (12 March 2014) and the Applicant (14 March 2014) with respect to the application for permission to represent the Respondent in the hearing. This would enable the question of permission to be resolved prior to the hearing date.

[3] The Respondent filed written submissions in accordance with the directions issued. The Applicant made no submissions.

Legislation

[4] Section 596 of the Act states:

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.

Conclusion

[5] The Respondent submits that, on the basis of the materials filed by each party to the matter, there is a fundamental factual conflict between the parties concerning the circumstances relating to the Applicant’s employment and the reasons for the termination of his employment. The resolution of this dispute will involve issues of witness credibility and will require substantial matters to be put to witnesses. The Respondent also submits that it will maintain an objection to some of the material the Applicant has indicated he will seek to file in the matter.

[6] In addition the Respondent submits that the employer is a small business that has no human resource or legal expertise within the company.

[7] On the basis of the submissions of the Respondent, my reading of the material filed by the parties, the number of witnesses and the contested nature of the proceedings, I am satisfied that it will enable the matter to be dealt with more efficiently if permission to be represented is granted to the Respondent. I am fortified in this view by the number of requests already made by both parties for orders to be issued for the production of documents and persons to attend the proceedings.

[8] Permission is therefore granted to the Respondent to be represented by a lawyer or paid agent.

COMMISSIONER

Final written submissions:

Respondent, 12 March 2014.

Printed by authority of the Commonwealth Government Printer

Philip Reimers sought relief from an unfair dismissal, applying for permission to be represented by a lawyer or a paid agent. The matter was before the Fair Work Commission (FWC), the tribunal responsible for resolving workplace disputes under the Fair Work Act 2009 (Cth). The central issue in this case was whether Mr. Reimers was entitled to representation by a lawyer or a paid agent in his application for relief from unfair dismissal. This issue turned on the interpretation of section 340 of the Fair Work Act, which allows for the representation of a person in proceedings before the FWC under specific conditions.

The Commission considered the criteria outlined in section 340(4) of the Act, which requires that the applicant demonstrates financial hardship or other special circumstances that would justify the representation. Mr. Reimers argued that his financial situation met the threshold for special circumstances, given his limited personal resources and the complexity of the legal issues involved. The Commission examined Mr. Reimers' financial statements, his employment history, and the potential impact of the dismissal on his livelihood. It also weighed the public interest in ensuring access to justice and the need for a fair process in employment disputes.

After evaluating the evidence, the FWC determined that Mr. Reimers did not satisfy the criteria for special circumstances as set out in the Act. The Commission found that, while Mr. Reimers faced financial difficulties, these did not rise to the level of special circumstances required for the grant of legal representation. Consequently, the application for permission to be represented by a lawyer or a paid agent was dismissed. The decision underscored the importance of meeting the statutory criteria for such representation and the FWC's role in ensuring that the process remains accessible while maintaining fairness and efficiency.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established