Ross Boyce v McLean Farms Staff Pty Ltd T/A McLean Farms

[2016] FWC 1627

[2016] FWC 1627

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Ross Boyce
v
McLean Farms Staff Pty Ltd T/A McLean Farms
(U2015/15111)

COMMISSIONER SIMPSON BRISBANE, 17 MARCH 2016

Applications for Legal Representation– Permission granted to the Respondent.

[1] The decision involves an application for unfair dismissal remedy made pursuant to s.394 of the Fair Work Act 2009 (the Act). The application was made by Mr Ross Boyce (“the Applicant”) who alleges that the termination of his employment with McLean Farms Staff Pty Ltd T/A McLean Farms (“the Respondent”) was unfair.

[2] The matter was listed for directions 22 February 2016 and was then listed for hearing 19 and 20 April 2016 in Toowoomba. At the directions hearing, the Respondent was seeking permission to be legally represented in the matter.

[3] I provided the parties with the opportunity to make submissions by 11 March 2016 as to whether the Fair Work Commission (FWC) should grant permission for the Respondent to be represented by a lawyer.

[4] The Applicant did not oppose the Respondent’s request at the Directions hearing however I gave him the opportunity to respond if he wished to.

[5] Section 596 of 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 FWC.

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

[6] The reasons for termination involve allegations in respect of the Applicant’s conduct. It is apparent the hearing will involve cross examination of witnesses concerning a range of factual disputes as elements of the alleged conduct are contested.

[7] The matter is sufficiently complex that it is appropriate to grant permission for the Respondent to be legally represented as it will enable the matter to be dealt with more efficiently. Accordingly the application for permission to be legally represented is granted.

COMMISSIONER

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