Richard Bassanese v HPS Transport Pty Ltd

[2014] FWC 8639

[2014] FWC 8639

FAIR WORK COMMISSION

DECISION

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

Richard Bassanese
v
HPS Transport Pty Ltd
(U2014/12955)

DEPUTY PRESIDENT BARTEL ADELAIDE, 1 DECEMBER 2014

Termination of employment - representation by lawyer - hearing or determinative conference.

[1] Richard Bassanese (the applicant) has filed an application for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (the Act). He contends that he was unfairly dismissed by HPS Transport Pty Ltd (the respondent) on 29 September 2014. The respondent contends that the dismissal was a case of genuine redundancy.

[2] Mr Josh Abbott, of Davis Advisory Lawyers, has applied for the respondent to be granted permission to be represented by a lawyer.

[3] The issue of permission to be legally represented was discussed with the parties in a telephone directions conference on 11 November 2014. The matter was held in abeyance at that time to enable the applicant time to obtain representation, but ultimately this did not eventuate. The parties were given a further opportunity to provide submissions on this matter and Mr Abbott provided written submissions on 27 November 2014. Nothing further was received from the applicant.

[4] A similar course of events arose in relation to the issue of whether the application should proceed by way of determinative conference or a court hearing. The respondent supports a court hearing while the applicant supports a determinative conference.

Representation

[5] The arguments advanced by Mr Abbott in support of permission to be represented can be summarised as follows:

• The respondent has no dedicated human resource personnel, and its managers have no experience in appearing before the Fair Work Commission (the Commission). As such it would be unfair not to allow the respondent to be legally represented;



• The applicant is an experienced litigant, having represented himself in two matters before industrial tribunals: Bassanese v Mantina Construction (Mantina) 1; and Richard Bassanese v Pure Logistics Cold Chain Pty Ltd (Pure Logistics).2 This would place the respondent at a disadvantage and representation would be appropriate taking into account fairness between the parties; and



• Representation would enable the matter to be dealt with more efficiently having regard to the jurisdictional issue of whether the dismissal was a case of genuine redundancy.

Court hearing or determinative conference

[6] In his written submissions Mr Abbott maintained that the issue of whether the dismissal was a case of genuine redundancy should proceed by way of a court hearing. It was submitted that this would facilitate the effective conduct of the matter by enabling the evidence to focus on the relevant issues.

Consideration

[7] Section 596 of the Act deals with representation by lawyers and paid agents 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 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.”

[8] Section 596 involves the exercise of a discretionary power by the Commission. However, the discretion can only be exercised in favour of granting permission if one or more of the circumstances set out in s.596(2) of the Act are satisfied. 3

[9] One of the main arguments of the respondent is based on the fact that the applicant has experience as a litigant and this would place the respondent at a disadvantage. An examination of the decisions cited by the respondent show that both decisions concerned extension of time applications in circumstances where the applicant had filed proceedings three years out of time (Mantina) and 15 months out of time (Pure Logistics). There is nothing in either decision to indicate that the applicant possesses any knowledge or skills that would create unfairness to the respondent if it was not represented.

[10] I am not satisfied that the case has any particular complexity such that legal representation is required to deal with the matter more efficiently. Whether the dismissal was a case of genuine redundancy is largely a question of fact to be determined on the evidence. Accordingly the respondent’s application for permission to be legally represented is declined.

Hearing or conference

[11] The relevant provisions of the Act are as follows:

“398 Conferences

(1) This section applies in relation to a matter arising under this Part if the FWC conducts a conference in relation to the matter.

(2) Despite subsection 592(3), the FWC must conduct the conference in private.

(3) The FWC must take into account any difference in the circumstances of the parties to the matter in:

(a) considering the application; and

(b) informing itself in relation to the application.

(4) The FWC must take into account the wishes of the parties to the matter as to the way in which the FWC:

(a) considers the application; and

(b) informs itself in relation to the application.

399 Hearings

(1) The FWC must not hold a hearing in relation to a matter arising under this Part unless the FWC considers it appropriate to do so, taking into account:

(a) the views of the parties to the matter; and

(b) whether a hearing would be the most effective and efficient way to resolve the matter.

(2) If the FWC holds a hearing in relation to a matter arising under this Part, it may decide not to hold the hearing in relation to parts of the matter.

(3) The FWC may decide at any time (including before, during or after conducting a conference in relation to a matter) to hold a hearing in relation to the matter.”

[12] Having regard to Mr Abbott’s submissions about the lack of advocacy and/or workplace relations experience of the respondent’s managers and my impression that the applicant will struggle to identify the issues that fall for determination, I consider that a determinative conference will be more suited to obtaining evidence on the relevant topics, and I determine accordingly.

DEPUTY PRESIDENT

 1   Print I.76/1996.

 2   [2007] AIRC 1027.

 3   See Warrell v Walton, [2013] FCA 291 at [24].

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