Regan Cox v Vinpac International Pty Ltd T/A Vinpac International

[2017] FWC 888

[2017] FWC 888

FAIR WORK COMMISSION

DECISION

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

Regan Cox
v
Vinpac International Pty Ltd T/A Vinpac International
(U2016/13390)

DEPUTY PRESIDENT BARTEL ADELAIDE, 13 FEBRUARY 2017

Termination of employment - representation by lawyer.

[1] Regan Cox (the applicant) was dismissed for serious and wilful misconduct on 18 October 2016 as a result of returning a positive test result for methamphetamine and amphetamine. The test was conducted after the applicant had an accident whilst driving a forklift. The applicant’s case in support of his application for an unfair dismissal remedy focuses primarily on the proportionality of the dismissal. He is represented by an Industrial Officer of United Voice, Ms Lauren Smith.

[2] Vinpac International (the respondent or Vinpac) is a wholly owned subsidiary of Woolworths Pty Ltd. The respondent has sought permission to be represented by a lawyer, which is opposed by the applicant.

[3] The relevant section of the Fair Work Act 2009 (the Act) provides 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) …

(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.”

The submissions

[4] The parties provided written submissions. 1 The respondent’s case in support of representation can be summarised as follows:

• The case is complex involving medical evidence and a number of witnesses;



• Representation would assist in eliciting relevant information and limiting the duration of the proceedings;



• The applicant is represented by an experienced industrial advocate;



• The respondent does not have access to industrial expertise;



• The respondent will have wasted the money expended to date on legal representation if permission to be represented in the proceedings is declined;

[5] The applicant submitted that:

• The respondent is a wholly owned subsidiary of Woolworths Pty Ltd which engages in house counsel;



• The respondent has an experienced Human Resources (HR) Manager who represented the respondent at the conciliation;



• The case does not involve complex legal issues and the medical evidence is not complex;



• There is no unfairness to the respondent given that it has legal expertise available;



• The preference of the respondent to have external legal representation is not sufficient; It will not be disadvantaged if it has to represent itself.

[6] In reply, the respondent submitted that:

• The HR Manager who attended the conciliation conference is not expected to represent the respondent in arbitration proceedings and has no experience in advocating before the Fair Work Commission (the Commission);



• Matters concerning serious and wilful misconduct have previously been considered by the Commission to be sufficiently complex to warrant legal representation;



• The matter involves complexity: Technical issues pertaining to the inhibiting effects of the proscribed substances in the applicant’s test results and the rates of metabolism of these substances; ancillary issues regarding the interpretation of the respondent’s drug policy; and witness credibility;



• Case law on issues of proportionality of dismissal involving drug use is not well settled;



• The respondent’s in house counsel is a commercial lawyer and there is no internal access to legal expertise in employment law;



• If permission to be represented is declined it is likely that the Human Resources Manager would represent the respondent whilst also being a witness in relation to the respondent’s drug policy and this would be unfair;



• The applicant’s representation by an organisation with significant experience before the Commission would result in unfairness to the respondent.

Consideration

[7] The scheme of the Act in relation to representation is that the Commission has a discretion as to whether to permit a party to be represented by a lawyer or paid agent, but the discretion to allow representation may only be exercised if one or more of the conditions in ss.596(2)(a), (b) or (c) are satisfied.

[8] At present the information available to the Commission about the cases to be presented by the parties consists of the Form F2 Application and the Form F3 Employer Response form and aspects of the submissions on representation. As such, the extent of the cases to be presented is not well defined at this stage 2 but there is sufficient material in the attachments to the Form F3 to suggest that there will be a number of different sources of evidence.

[9] While the applicant accepts the result of the tests that led to his dismissal, issues such as the proportionality of the dismissal are not necessarily divorced from the extent of any impairment as a result of the proscribed substances and/or when the substances were taken. Accordingly, the medical evidence is likely to assume some importance.

[10] The Commission is aware that issues related to drugs in the workplace, including the content and application of drug policies, issues of impairment and the health and safety obligations of employers and employees in relation to drugs in the workplace have been the subject of a range of Commission decisions.

[11] The applicant is represented by an industrial officer with experience in the presentation of cases before the Commission, and with access to the industrial and legal resources of United Voice. I would be concerned if the result of declining permission for the respondent to be represented by a lawyer was that the HR Manager would present the case and also be a witness for the respondent. In my view, this may detract from the effective presentation of the respondent’s case. Of more weight in my consideration however is the nature of the medical evidence that will be presented and the substantial case law that exists around the issues relevant to this case. In regard to these matters, the Commission would be assisted by the respondent having representation by a lawyer with experience in employment law.

[12] The applicant referred to my decision in Hamilton v Carter Holt Harvey 3 where permission for the employer to be legally represented was declined in circumstances where the employer had access to in-house legal counsel, albeit not experienced in employment law. There is limited utility in my view in relying on decisions where the nature of the dismissal is not comparable. In addition, issues of fairness between the parties and the level of assistance that may be afforded to the Commission by granting permission to be legally represented must, in my view, include a consideration of the relative experience and competence of the parties’ representatives.

[13] I have concluded that legal representation for the employer would enable the matter to be dealt with more efficiently having regard to the issues involved in this matter, and that I should exercise my discretion accordingly. The application for permission for the respondent to be represented by a lawyer is therefore granted.

DEPUTY PRESIDENT

 1   Respondent’s submissions, 18 January 2017; Applicant’s submissions, 31 January 2017; Respondent’s reply, 6 February 2017.

 2   The parties are yet to file Outlines of Argument and witness statements.

 3   Hamilton v Carter Holt Harvey Wood Products Australia Pty Ltd[2012] FWA 5219.

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