Rajwinder Kaur v Cheltenham Manor Pty Ltd

[2016] FWC 1329

[2016] FWC 1329

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Rajwinder Kaur
v
Cheltenham Manor Pty Ltd
(U2015/13217)

COMMISSIONER RYAN MELBOURNE, 1 MARCH 2016

Application for relief from unfair dismissal – representation by paid agent or lawyer.

[1] The Applicant has sought permission to be represented by a lawyer or paid agent at the arbitration of the Applicant’s unfair dismissal application.

[2] The Applicant’s representative filed written submissions on 26 February 2016 in relation to the Applicant’s request for permission to be represented, which was copied to the Respondent’s representative.

[3] The Respondent has made no submissions pursuant to s.596.

[4] Representation by lawyers or paid agents is dealt with in s.596 of the Act 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.”

[5] In the present matter the Applicant relies on paragraphs 596(2)(a), (b) and (c) for seeking permission to be represented by a lawyer or paid agent as follows:

“a) We consider the complexities of the matter, and in particular the jurisdictional objection that has been raised provide sufficient scope for permission to be granted under s596.2(a) of the Fair Work Act in that it would allow the matter to be dealt with more efficiently.

b) With regard to s596.2(b) it would be unfair not to allow the applicant to be represented because the applicant is unable to represent herself effectively. The applicant is from a Non English Speaking Background.

c) With regards to s596.2(c) it would be unfair not to allow the applicant to be represented taking into account fairness between the applicant and the respondent. The Managing Director of the respondent is, we understand, a solicitor and it is fair for the applicant to be represented by a paid agent in these circumstances. The applicant has no legal qualifications, has no experience with court processes or rules of evidence.”

[6] Having considered the written submissions filed by the legal representative of the Applicant, I am satisfied that it would be unfair not to allow the Applicant to be represented because the Applicant is unable to represent herself effectively.

[7] Permission is granted to the Applicant to be represented by a lawyer pursuant to s.596(2)(b).

COMMISSIONER

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