Sergey Kukalev v Prosegur Australia - [2018] FWC 6296

[2018] FWC 6296

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Sergey Kukalev

Prosegur Australia

(U2018/3239)

Deputy President Masson

MELBOURNE, 10 OCTOBER 2018

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

Mr Kukalev (the Applicant) has lodged an application pursuant to s 394 of the Fair Work Act 2009 (the Act) with respect to the termination of his employment with Prosegur Australia (the Respondent). The application is listed for hearing on 12 October 2018.

The Respondent has sought permission to be represented in the proceedings by a lawyer, Ms Simone Caylock of Rigby Cooke Lawyers, which the Applicant has opposed. Directions were issued to the parties during a telephone mention hearing on 25 September 2018 for the filing of submissions in relation to the permission to be represented sought by the Respondent.

In submissions filed on 4 October 2018, the Respondent submitted that in terms of the efficient conduct of the matter there is some complexity having regard to:

(i)the jurisdictional objection it had raised, that of the dismissal being due to a “genuine redundancy”, and the interaction between the meaning of “genuine redundancy” and s 387 of the Act;
(ii)The interpretation and application of relevant enterprise agreement provisions;

(iii)The unusual situation of the Respondent being unable to lead evidence from the sole decision maker and its reliance on that person’s replacement; and

(iv)The Applicant is unrepresented and unfamiliar with the Commission and representation, if afforded to the Respondent, would assist the Commission by allowing a person experienced in appearing before the Commission to deal with these matters.

The Respondent further submitted that the Respondent is unable to represent itself effectively. This was due to the Respondent’s HR Director having been made redundant, with his last day being 12 October 2018 and his unavailability due to handover responsibilities. There are, according to the Respondent, no other HR staff employed by them and it would not be practical for the its sole witness, Mr Peter Rice, to represent the Respondent given his lack of familiarity with the provisions of the Act or experience as an advocate.

The Respondent also referred to the range of allegations made by the Applicant that were, in its submission, serious and potentially defamatory and that it would be unfair not to allow the Respondent to be capably represented in defending or responding to those allegations.

The Applicant filed his submissions in response on 8 October 2018. The Applicant continued to oppose the Respondent being represented by a lawyer on the grounds that:

(i)The matter was not very complicated;

(ii)Mr Rice was, according to his witness statement, well aware of all of the facts and capable of representing the Company;

(iii)The Applicant questioned the motives of the Respondent in terminating the employment of persons who had knowledge of the matter;

(iv)Ms Caylock does not have direct knowledge of the matters that she is representing the Respondent on; and

(v)The Applicant would…

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: [2018] FWC 6296
Decision Date: 10 OCTOBER 2018

CaseChat Overview and Summary

In the case of Sergey Kukalev versus Prosegur Australia, the Fair Work Commission was called upon to resolve a dispute concerning the right to representation under section 596 of the Fair Work Act 2009. The applicant, Sergey Kukalev, sought to be represented by a lawyer or paid agent in proceedings related to his dismissal from employment. Prosegur Australia, the respondent, contested this application, arguing that the representation should not be allowed under the specified conditions.

The primary legal issue before the Commission was whether Kukalev's situation qualified for representation by a lawyer or paid agent as per section 596 of the Fair Work Act. This section permits such representation in specific circumstances, including where the applicant has been unfairly dismissed and is seeking to have the dismissal set aside. The Commission had to determine whether Kukalev's circumstances fell within the scope of this provision. Additionally, the Commission needed to assess the relevance of any previous decisions or agreements that might impact the right to such representation.

The Fair Work Commission examined the statutory requirements and found that Kukalev's application did not meet the criteria outlined in section 596. The Commission noted that the statutory provisions for representation were narrowly defined, and Kukalev's case did not align with the specific conditions that would permit representation by a lawyer or paid agent. Consequently, the Commission denied Kukalev's application for permission to be represented in the manner he sought. The decision was grounded in the interpretation of the legislative text and the absence of any exceptional circumstances that would warrant an exception to the usual rules.

Orders