Shaun Tamehana v Contraflow Pty Ltd

[2015] FWC 2476

[2015] FWC 2476

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Shaun Tamehana
v
Contraflow Pty Ltd
(U2014/12905)

COMMISSIONER WILLIAMS PERTH, 13 APRIL 2015

Respondent representation.

[1] Contraflow Pty Ltd (the respondent) has requested pursuant to section 596 of the Fair Work Act 2009 (the Act) that they be granted permission to be represented by a lawyer or paid agent in the above matter before the Fair Work Commission (the Commission).

[2] Section 596 of the Act is set out below:

“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 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.

(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.”

[3] The applicant’s case concerns his assertion he was absent due to illness for two or three days immediately before his dismissal. The respondent’s case is the applicant was dismissed because of ongoing poor attendance throughout his employment.

[4] The material before the Commission discloses the applicant was employed for eight months. The hearing of this matter will involve evidence from three witnesses and their statements are all brief and cover a limited range of factual issues. There is nothing in the submission on behalf of the respondent nor the application itself that demonstrates that this is a complex matter which will be more efficiently dealt with by the respondent being represented.

[5] There is no evidence before the Commission that demonstrates the respondent is unable to effectively represent itself through its own staff in the context of this quite simple matter. The inconvenience to the respondent’s staff of them attending the hearing of this matter is not a relevant consideration under section 596 of the Act.

[6] The applicant is self represented and there is no evidence the applicant is experienced in conducting hearings. Consequently it would not be unfair not to allow the respondent to be represented taking into account fairness between the respondent and the applicant.

[7] I have considered the provisions of section 596 (2) of the Act in the context of this particular application and the submission made on behalf of the respondent in their lawyer’s letter dated 26 March 2015 and the circumstances of both parties and have decided not to grant permission for the respondent to be represented by a lawyer or a paid agent.

COMMISSIONER

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