Sarah Tims
[2018] FWC 4931
•22 August 2018
| [2018] FWC 4931 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
Section 789FC - Application for an order to stop bullying
Sarah Tims
(AB2018/279)
| Deputy President Anderson | ADELAIDE, 22 August 2018 |
Application for an order to prevent bullying – legal representation – requests for permission – requests consented to – permission granted on conditions
On 10 May 2018 Sarah Tims (‘Ms Tims’ or ‘the applicant’) made an application under section 789FC of the Fair Work Act 2009 (FW Act) for orders to stop alleged bullying.
The respondents to the application are her employer The Burnside War Memorial Hospital Inc (‘Burnside Hospital’ or ‘the employer’) and three named persons (Ms Chambers, Ms Parry and Ms O’Neill). It is noted that on 2 July 2018 the Commission granted leave for the applicant to amend her application by removing Ms Camporeale as a person named.
The matter was originally allocated to Commissioner Hampton. The Commissioner conducted a preliminary conference on 13 June 2018 and a conciliation conference on 27 June 2018. In light of conciliation conducted by the Commissioner, the reallocation of the matter to a different Member of the Commission for hearing and determination was considered appropriate. It was reallocated to me for that purpose.
It is noted that Commissioner Hampton issued a Statement and Directions dated 15 June 2018 concerning matters relevant to the conciliation he conducted.
I conducted a directions conference of the parties (in person) on 3 August 2018. I issued directions on 6 August 2018. The matter is listed for hearing on 31 October 2018 and 1, 2 and 9 November 2018.
This decision concerns representation at the hearing of the matter.
It is noted that in his Statement and Directions of 15 June 2018 Commissioner Hampton determined that permission for the respondent parties to be legally represented at conciliation on 27 June 2018 was refused. The Commissioner added:[1]
“this does not preclude the application for permission for legal representation being renewed (by any of the parties) should the matter not be resolved at conciliation and subsequently referred for a determinative process”.
I am now conducting that determinative process.
It is noted that at the directions conference before me on 3 August 2018 all parties sought permission to be legally represented: the applicant (by Ms Ivanov), the respondent employer and two of the named persons Ms Chambers and Ms O’Neill (by Ms Perry) and a third named person Ms Parry (by Ms Kaukas). These applications were made by consent save that the applicant opposed Ms Perry’s request.
At the directions conference, I granted permission for each party to be so represented at that conference, but for the purposes of that conference only. I noted the provisions of Rule 12 of the Fair Work Commission Rules 2013 and that no direction to the contrary under rule 12(2) has, to date, been made by the Commission in this matter. My directions of 6 August 2018 invited written submissions requesting permission and in reply to such requests (if any).
I have received the following requests for permission:
By the applicant Ms Tims, to be represented by a legal practitioner (request made by Stokes Legal 10 August 2018);
By the respondent employer (Burnside Hospital) and two of the persons named (Ms Chambers and Ms O’Neill) to be represented by a legal practitioner (request made by EMA Legal 10 August 2018); and
By a person named (Ms Parry) to be represented by a legal practitioner (request made by Andersons Solicitors 10 August 2018).
The respondent employer (Burnside Hospital) and two of the persons named (Ms Chambers and Ms O’Neill) have not objected to requests for permission made by the applicant or by Ms Parry.
Ms Parry (person named) has not objected to requests for permission made by the respondent employer (Burnside Hospital) and two of the persons named (Ms Chambers and Ms O’Neill).
The applicant has not objected to the request for permission made by the person named Ms Parry. On 20 August 2018 the applicant objected to EMA Legal being utilised as the legal practitioner for the respondent employer (Burnside Hospital) and two of the persons named (Ms Chambers and Ms O’Neill). However, by email dated 21 August 2018 the applicant withdrew her objection to EMA Legal being utilised as the legal practitioner for these parties.
Accordingly, five requests for permission are before me and there are no current objections to those requests.
Ms Tims makes her request on the ground that her case would only be effectively presented by a legal practitioner, that proceedings would be more effectively conducted with representation and on the ground of fairness should permission be granted to the other parties. She says that the case is likely to involve considerable and sensitive evidence as well as questions of law. She says that she has no legal experience and has already experienced “stress and mental anguish” which would be compounded if she was required to represent herself.
The respondent employer says that its case would be more effectively presented by a legal practitioner, that proceedings would be more effectively conducted with representation and that it would be fair to grant permission should it be granted to the other parties. It says that the case is likely to involve factual disputes and complex cross examination. It says that it has no in-house expertise in this area, and that the person who would otherwise be required to represent it should permission not be granted is intended to be a material witness. It says that it would be at a “forensic disadvantage” if it had to rely on in-house representation.
The persons named Ms Chambers and Ms O’Neill say that they would be unable to effectively defend their position having regard to the personal nature of the allegations, the seriousness of them and their skills which are not in the nature of advocacy. They say that their case would only be effectively presented by a legal practitioner, that proceedings would be more effectively conducted with representation and that it would be fair to grant permission should it be granted to the other parties.
The person named Ms Parry says that she would be unable to defend her position having regard to her “absolute unfamiliarity” with the legal process and the seriousness of the allegations made against her. She says that her case would only be effectively presented by a legal practitioner, that proceedings would be more effectively conducted with representation and that it would be fair to grant permission should it be granted to the other parties.
Consideration
The hearing of this matter is scheduled to be lengthy (over four days). It concerns serious allegations of a personal and sensitive nature. It is apparent from examining the material on the record, even at this early stage, that factual disputes are likely to arise on the evidence. It is abundantly clear that neither the applicant Ms Tims nor the three persons named have any legal experience to draw upon to represent themselves at a hearing on this application, let alone to do so effectively. It is also apparent that the Burnside Hospital has limited in-house capability, and that its case would not be effectively presented utilising that limited capability. I also accept that being both witness and interrogator of evidence in a case such as this would be a significant burden and potentially unfair to each of the parties. I further conclude that doing so would add unduly to the stress and anxiety caused to each of the parties by the alleged events, the making of allegations and the conduct of these proceedings.
Whilst limiting the role of legal practitioners at the initial conciliation conference conducted by Commissioner Hampton was soundly based, the application is now set down for hearing and being prepared for hearing. I find the reasons for requesting permission at the hearing of the matter by each of the five parties compelling.
I grant permission under section 596 of the FW Act for the applicant Ms Tims, for the respondent employer (Burnside Hospital) and for the three named persons (Ms Chambers, Ms O’Neill and Ms Parry) to be legally represented.
I do so however with two caveats.
Firstly, should further conciliation of this matter be conducted by Commissioner Hampton (see below), this decision does not grant permission for any party or person to be represented at that further conciliation. If needed, I will leave that question to be determined by Commissioner Hampton having regard to the nature and state of conciliation proceedings and the relevant statutory provisions.
Secondly, should, during the course of the hearing of this matter or in light of the evidence, representation by a legal practitioner does not continue to contribute to the efficient or fair conduct of proceedings or if for some other reason permission under section 596 should be withdrawn to one or other party I will raise that issue with the parties of my own motion, or consider a properly made application to that effect. Otherwise, permission is granted to all parties to be represented at the hearing of this matter (including further directions hearings) unless and until the Commission otherwise orders.
I grant permission under section 596 of the FW Act.
Conciliation
I draw to the attention of the parties my observation at paragraph [18] of my directions of 6 August 2018:
“In a further endeavour to reach a negotiated resolution, and at the discretion of the Commission, parties have the opportunity to avail themselves of a further conciliation conference before Commissioner Hampton. If this request is made, the views of the other parties will be sought. If a party seeks to take this opportunity they should contact my Chambers. Parties should be aware that this conciliation opportunity does not detract from the obligation to comply with these directions.”
To date, I have received no such request. That opportunity remains open.
DEPUTY PRESIDENT
[1] Statement and Directions 15 June 2018 at paragraph 8, Hampton C
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