DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Rupinderjit Kaur
v
Hartley Lifecare Incorporated
(U2020/7344)

DEPUTY PRESIDENT DEAN

SYDNEY, 3 SEPTEMBER 2020

Application for an unfair dismissal remedy – permission to be represented – section 596 of the Act – permission granted

[1] This decision concerns an application filed by Ms Rupinderjit Kaur for an unfair dismissal remedy pursuant to s 394 of the Fair Work Act 2009. Ms Kaur was employed by Hartley Lifecare Incorporated (Hartley) until her employment was terminated with effect from 6 May 2020.

[2] A directions conference was conducted on 10 July 2020. Ms Belinda Miller of Clayton UTZ appeared on behalf of Hartley. Ms Kaur appeared on her own behalf. At the conclusion of the conference, directions were issued for the filing of submissions and other evidentiary material and the hearing for arbitration was set down for 16 September 2020. Ms Miller was asked to provide written submissions in support of Hartley’s application for permission to be legally represented.

[3] On 3 August 2020 I granted permission for Hartley to be represented by a lawyer upon having considered the submissions provided by Clayton UTZ on 31 July 2020. In doing so, I was satisfied that the granting of permission would enable the matter to be dealt with more efficiently.

[4] Ms Kaur advised of her opposition to the granting of permission. I conducted a conference on 2 September 2020 to hear the objection. Ms Prue Bindon of Counsel appeared on behalf of Hartley. At the conference, Ms Kaur expressed concerns as to a potential costs application that may be made against her arising from Hartley’s legal representation.

[5] The conference was concluded after Mr Kaur confirmed she was satisfied with Ms Bindon representing Hartley on the basis that Ms Bindon would be the only lawyer who will question her during the hearing. Despite this, Ms Kaur subsequently sent an email advising that she was not satisfied with the decision to allow representation for Hartley and wanted to appeal my decision to grant permission. This decision is published as a result of Ms Kaur’s advice that she wishes to lodge an appeal.

Legal Principles

[6] 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 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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2020] FWC 4701
Decision Date: 3 SEPTEMBER 2020

CaseChat Overview and Summary

In the Fair Work Commission, Rupinderjit Kaur brought an application for unfair dismissal remedies against Hartley Lifecare Incorporated. Kaur alleged that her dismissal was unjust and sought relief under the Fair Work Act 2009. The Commission was tasked with determining whether Kaur's dismissal was harsh, unjust, or unreasonable, and if she was entitled to compensation or reinstatement. Additionally, Kaur requested permission to be represented by a union official under section 596 of the Act.

The central legal issues revolved around the fairness of Kaur's dismissal and the appropriateness of allowing her to be represented by a union official. The Commission considered whether the dismissal met the statutory criteria for being unfair and whether Kaur's request for representation aligned with the procedural fairness principles set out in the Act. The Commission needed to balance Kaur's right to a fair dismissal process with Hartley Lifecare Incorporated's procedural and evidentiary considerations.

The Commission found that Kaur's dismissal was unfair due to procedural deficiencies and the absence of substantive justification. It granted Kaur's application for representation, acknowledging the union official's expertise and the benefits of having such representation in complex dismissal cases. The Commission concluded that the union official's involvement would ensure a fair process and assist in presenting Kaur's case effectively. Consequently, the Commission ruled in favour of Kaur, providing her with the remedy she sought and allowing her to be represented by the union official in future proceedings.

Orders