Stephanie Hausin v Healthcare Australia Pty Ltd

[2024] FWC 2026

[2024] FWC 2026

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Stephanie Hausin
v

Healthcare Australia Pty Ltd

(U2024/5553)

COMMISSIONER SIMPSON BRISBANE, 7 AUGUST 2024

Application for an unfair dismissal remedy - representation

1. On 16 January 2024, Mrs Stephanie Hausin (the Applicant / Mrs Hausin) applied to the Fair Work Commission (the Commission) under s.394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy, alleging she was unfairly dismissed from her employment with Healthcare Australia Pty Ltd (the Respondent).

1. The Respondent raised a jurisdictional objection on their Form F3 Employer Response that the dismissal was a case of genuine redundancy. The matter is listed for Hearing of merits and the jurisdictional objection on 22 August 2024

1. On 18 July 2024, the Respondent filed submissions on Representation. On 25 July 2024 the Applicant raised an objection to the Respondent being represented.

Respondent Submissions

1. The Respondent made submissions under sections 596(2)(a) and (b) of the Act. Firstly, it argued that there were two issues to be determined, the jurisdiction (whether the redundancy was genuine) and the merits of the application (whether the dismissal was unfair).

1. The Respondent argued that the jurisdictional issue gave rise to complexity as consideration was required of the relevant jurisprudence and the exclusion under section 389(2) of the Act and whether the Respondent met the requirements to offer reasonable redeployment.

1. The Respondent made reference to the case of CEPU v UGL Resources Pty Limited (Project Aurora)[1] to support the submission that cases where jurisdictional issues are present are inherently more complex and may require a degree of familiarity with the relevant jurisprudence and authorities. Further, that the onus to establish the lack of jurisdiction through the objection falls to the Respondent as the party raising this objection and the Respondent would be able to do this more efficiently and with greater focus if it was represented.[2]

1. Secondly, it submitted that members the Respondent’s Human Resources department do not hold legal qualifications or experience in advocacy or employment litigation. Further, familiarity with rules of witness examination would be necessary in this matter due to the disputed facts which the Respondent submitted would be rebutted through examination of the witnesses.

Applicant’s Submissions

1. In response to the Respondent’s request for permission to be legally represented, the Applicant submitted that overall the Respondent had not provided sufficient reason to justify the granting of legal representation.

1. She submitted that jurisdictional objections are typical in unfair dismissal cases and do not significantly heighten the complexity of the matter. Further, that the Respondent has not provided sufficient material to justify the objection or demonstrated that the jurisdictional issue makes the case complex.

1. Regarding effective representation, reference was made to the Respondent’s in house representative’s demonstrated fluency in written and verbal communication throughout the conciliation process. The Applicant concluded that it is therefore reasonable to conclude that she would be able to effectively represent the Respondent herself without a legal representative.

1. The Applicant submitted that the burden of proof the Respondent is under to establish their objection is a standard aspect of all court proceedings and should not justify the need for legal representation.

1. Finally, the Applicant argued that it would not promote fairness between the parties for permission to be granted as she herself did not hold legal qualifications and it would cause an imbalance of power for the Respondent to be legally represented while she was not.

Consideration

1. The Commission only needs to find that one of the sub-sections in section 596(2) is satisfied to exercise the discretion to grant permission for a party to be represented. The satisfaction of one of these conditions is not determinative but enlivens the Commission’s discretion as to whether permission to be represented should be granted.[3]

1. This case involves a jurisdictional issue raising questions of fact and law and the matter does involve some complexity.

1. I refer to the decision of Deputy President Sams where it was said that in most cases of complexity, representation will be of assistance to the Commission.[4] The Respondent in this matter relies upon evidence of a consultation process being undertaken and reasonable opportunities for redeployment being offered to substantiate the objection that the dismissal was due to a genuine redundancy. The Applicant has foreshadowed that she disputes this as a matter of fact.

1. In considering whether a matter would be dealt with more efficiently should a legal representative be engaged, in ASC Pty Ltd v AWU, Deputy President Gostencnik observed that:[5]

“...the question, for the purposes of granting permission for the reasons set out in section 596(2)(a) of the Act, is not whether ASC can be represented or even effectively represented by in-house resources, rather the relevant question is whether, taking into account the complexity of the matter, the grant of permission to ASC to be represented by a lawyer (in this case one experienced in advocacy and industrial law) would enable the matter to be dealt with more efficiently. The in-house capacity of ASC has a bearing on that assessment but I am satisfied that in this case the grant of permission to ASC for external legal representation will have that result.”

1. I have considered the submissions of the Applicant including that it would be unfair for the Respondent to be granted leave given they are a large employer, and the Applicant is self-represented. The legal representative has a duty to the Commission to assist it. The Commission is required to ensure the Applicant is not unfairly disadvantaged by the granting of leave to the other party.

1. I am satisfied the Respondent has met the requirement in section 596(2)(a) as I am satisfied having a legal representative involved in the case who is familiar with the relevant questions in a jurisdictional dispute of this nature will assist in the matter being conducted more efficiently than otherwise may be the case.

1. I am satisfied that the countervailing considerations that may tell against the grant of leave can be adequately managed, and in the exercise of my discretion I have determined to grant leave to the Respondent to be represented.

COMMISSIONER

[1] [2012] FWA 2966 at [23].

[2] Applicant v Respondent[2014] FWC 2860 at [20].

[3] CEPU & Ors v Northern SEQ [2016] FWC 4736 at [13]-[14].

[4] Applicant v Respondent[2014] FWC 2860 at [20]; see also [2021] FWC 3178 at [34].

[5] [2014] FWC 544 at [16].

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