Robin Hansen v Calvary Health Care Adelaide Limited

[2016] FWC 1495

[2016] FWC 1495

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Robin Hansen
v
Calvary Health Care Adelaide Limited
(U2015/16189)

COMMISSIONER PLATT ADELAIDE, 9 MARCH 2016

Permission to be represented by a ‘lawyer or paid agent’ pursuant to s.596 of the Fair Work Act 2009.

[1] Ms Hansen has lodged an application pursuant to s.394 of the Fair Work Act 2009 (FW Act) with respect to the termination of her employment with Calvary Health Care Adelaide Limited (Calvary Health Care). This application is listed for hearing on 26, 27 and 28 April 2015. This decision deals specifically with the issue of representation.

[2] I note that from a review of the documents filed to date, the determination of this matter will require findings of fact in respect of a range of matters including:

● the claim by Ms Hansen that following a conflict between her and another nurse over an alleged medication error she was bullied and/or harassed by work colleagues;
● an allegation of threatening and/or intimidating conduct by Ms Hansen towards work colleagues; and
● actions outside of the workplace where Ms Hansen is alleged to have threatened and/or coerced employee(s) not to give evidence.

[3] On 28 January 2016, the Commission issued directions which required Calvary Health Care to file a formal application for permission to be represented by a lawyer or paid agent, by 5 February 2016. As part of this hearing, consent orders were made that the Ms Hansen not communicate, contact or approach the personal residences of two witnesses in this matter.

[4] On 5 February 2016, a submission seeking a grant of representation was received from DW Fox Tucker on behalf of the respondent. This submission sought permission pursuant to s.596(2) of the FW Act on the basis that:

● the factual matrix is complex, involves 7 witnesses and deals with a range of topics not commonly found in a hearing of this nature;
● the applicant allegedly intimidated and tried to dissuade a witness from appearing;
● credit was in issue and there would be a need for a wide ranging cross examination; and

● Calvary Health Care does not have in-house legal or human resource personnel in South Australia with employee relations knowledge.

[5] On 17 February 2016, Ms Hansen advised the Commission that her representative had withdrawn and sought that the 20 January 2016 directions be amended.

[6] On 3 March 2016, a further directions conference was conducted in person. The question of representation was revisited. Mr Walsh of DW Fox Tucker Lawyers reiterated the basis of his application and Ms Hansen was provided with an opportunity to respond.

[7] Ms Hansen advised the Commission that she has no knowledge of law or employee relations, was unable to afford to pay a lawyer and was continuing to seek representation in a manner which she could afford. Ms Hansen believed that Calvary Health Care would have an unfair advantage if it were legally represented.

[8] Section 596(2) of the FW Act in dealing with representation by lawyers and paid agents states:

“596(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.”

[9] In considering the request for a grant of permission now made by Mr Walsh, I have particularly noted the factual matrix summarised in paragraph [2] above.

[10] Mr Walsh has submitted that permission for representation should be granted pursuant to s.596(2)(a) of the FW Act, because the application involves complex issues which would be able to be dealt with more efficiently if Calvary Health Care was represented. The issues include significant factual disputes about the events which led to the termination of employment and the post-termination conduct. Mr Walsh advised the Commission that Calvary Health Care intended to call between 3 and 4 witnesses. Ms Hansen intends to call 6 witnesses subject to the overlap with the Calvary Health Care’s witnesses. It is possible that some of the witnesses to be called by Ms Hansen will, in the legal sense, be hostile witnesses. Credit will be in issue with most witnesses and there is a concern about the level of hostility and acrimony between Ms Hansen and Calvary Health Care’s witnesses in these circumstances.

[11] In terms of s.596(2)(b), Mr Walsh submitted that Calvary Health Care did not have a person within the organisation who could effectively represent it in these proceedings.

[12] In response, Ms Hansen has no legal or industrial legal training, is unable to afford paid legal representation and is concerned that a decision to allow representation to Calvary Health Care will provide an unfair advantage.

[13] This matter will require the determination of a range of complex issues. I have considered the extent to which a grant of representation should be issued on the basis that it would enable this matter to be dealt with more efficiently, as a result of the added complexity in this matter. I also consider there is a substantial risk that personal animosities will impact on how parties present their cases and conduct themselves at the hearing, this risk will be reduced by the involvement of legal representation. In light of these issues, I consider that external legal expertise would enable the matter to be dealt with more efficiently and I am satisfied that permission for representation by a lawyer should be granted.

[14] I turn to the second limb of Mr Walsh’s submissions relative to Calvary Health Care’s incapacity to represent itself effectively. I accept that if Calvary Health Care is required to represent itself in this matter, its representative will not be skilled in the area of employee relations. This is the same position that Ms Hansen finds herself in. However, given the conclusion, I have reached with respect to s.596(2)(a) it is not necessary that I determine a position relative to s.596(2)(b).

[15] Ms Hansen’s concern, that representation of Calvary Health Care by a lawyer would represent an unfairness to her goes to s.596(2)(c). In this respect, it is significant to note that s.596(2)(c) is phrased in the negative. This provision does not represent a basis upon which, in these circumstances, and having concluded that the requirements of s 596(2)(a) are met, I should refuse to grant permission for representation by a lawyer. It may provide a basis upon which I should approve a grant of permission for Ms Hansen to be represented by a lawyer. I note that Ms Hansen has advised the Commission that she is continuing to seek access to legal representation.

[16] For the reasons set out in this decision, permission for representation of Calvary Health Care by a lawyer is granted pursuant to s.596(2)(a). However, the submissions made by Ms Hansen mean that it is appropriate that I make two further observations.

[17] In the event that Ms Hansen continues to represents herself, she should be aware that she is able to ask for an opportunity to access legal advice at any point in the proceedings.

[18] Finally I will ensure that the hearing is conducted in a manner which affords procedural fairness and to the extent permissible will assist Ms Hansen with the procedural elements of the hearing.

COMMISSIONER

Appearances:

R Hansen, on her own behalf.

P Walsh ofDW Fox Tucker Lawyers, for Calvary Health Care Adelaide Limited.

Hearing details:

2016

Adelaide

3 March 2016

Printed by authority of the Commonwealth Government Printer

<Price code A, PR577798>