Robert Anthony Richards v Regional Express Holdings Ltd T/A Rex Airlines

[2010] FWA 3843

[2010] FWA 3843

FAIR WORK AUSTRALIA

DECISION

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

Robert Anthony Richards
v
Regional Express Holdings Ltd T/A REX Airlines
(U2010/299)

COMMISSIONER BISSETT MELBOURNE, 20 MAY 2010

Termination of employment: permission to be represented by a lawyer.

[1] The Australian Federation of Air Pilots (AFAP), representing the applicant, has objected to the respondent (Regional Express Holdings Ltd) being legally represented in unfair dismissal proceedings listed for arbitration in Melbourne on 10 and 11 June 2010.

[2] Written submissions with respect to such representation have been lodged by the AFAP and lawyers for the respondent. Both parties have consented to me deciding the matter on the basis of the written submissions.

[3] The relevant provisions of the Fair Work Act 2009 (the Act) are set out in s.596(1) and (2). They are as follows:

(1) Except as provided by subsection (3) or the procedural rules, a person may be represented in a matter before FWA (including by making an application or submission to FWA on behalf of the person) by a lawyer or paid agent only with the permission of FWA.

(2) FWA may grant permission for a person to be represented by a lawyer or paid agent in a matter before FWA 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 FWA 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.

Submissions

[4] The AFAP contend that the unfair dismissal matter is not of such a complex nature to require technical legal argument and that the company is of an adequate size to undertake their own representation.

[5] The respondent submitted that there will be a contest of factual matters in the context of the applicant denying the allegations with respect to his conduct. Detailed cross-examination of witnesses will be required. Further, orders (if issued) seeking the attendance if witnesses will require the leading of viva voce evidence. Further, the respondent submitted that technical legal argument that goes to matters of procedural fairness may need to be put.

[6] In addition the respondent submitted that the respondent does not have specialist human resources or other staff that have the necessary skills in advocacy such that they could effectively represent themselves in the matter.

[7] The respondent referred me to a number of decisions of Fair Work Australia where legal representation was permitted in circumstances where there were sufficiently complex factual issues and witness cross-examination was required. 1

Consideration

[8] There is no dispute between the parties that the decision to grant permission for representation by a lawyer under s.596(2) is a matter of discretion. That discretion should be exercised having regard to the matters in s.596(2).

Efficiency and complexity of the matter

[9] On the basis of the outline of submissions and witness statements filed in this matter, and without going to the merits of the matter, there is no doubt that much, if not all, of the factual matters are contested. The truth or otherwise of the allegations against the applicant will need to be determined through the evidence adduced in the hearing. Orders have been sought which, if granted, will require viva voce evidence in chief to be led.

[10] Whilst I believe the matter could proceed without legal representation, I consider that it is likely to be dealt with more efficiently if there is legal representation.

Whether the respondent has the ability to be self represented

[11] The respondent has, for many years, had legal representation in matters before Fair Work Australia and the Australian Industrial Relations Commission. Clearly they rely on external assistance in dealing with such matters. There is nothing to suggest that the respondent has the skills necessary to represent itself through its own employees.

Fairness

[12] The applicant in this matter is represented by an experienced union official. The respondent has had legal representation from the commencement of these proceedings. It would be unfair, in my view, to not allow the respondent to continue with legal representation.

Conclusion

[13] Based on the material submitted by the parties I have decided that the respondent should be permitted to have legal representation at the hearing of this application.

[14] The AFAP have indicated that, should permission be given to the respondent to be so represented, the applicant would need to consider such representation. The applicant will also be given permission to have legal representation should an application be made.

COMMISSIONER

 1   Hopper v Goodyear and Dunlop Tyres (Australia) Pty Ltd [2010] FWA 2550; Dobson v Qantas Airways Limited [2010] FWA 3532; Kerridge v Bowditch & Partners Plant Services Pty Ltd[2010] FWA 2703.

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