Stephen McCreight v Bandarrah Pty Ltd T/A Giovanni Ristorante Pizzeria

[2014] FWC 5581

[2014] FWC 5581

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Stephen McCreight
v
Bandarrah Pty Ltd T/A Giovanni Ristorante Pizzeria
(U2014/7283)

DEPUTY PRESIDENT BARTEL ADELAIDE, 14 AUGUST 2014

Termination of employment - representation by a lawyer

[1] Stephen McCreight (the applicant) has filed an application for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (the Act). He commenced employment with Bandarrah Pty Ltd T/A Giovanni Ristorante Pizzeria (the respondent) in either February or April 2013. The parties are in dispute as to whether the applicant was dismissed at the initiative of the respondent or resigned his employment.

[2] The respondent is a small business employer as defined in s.23 of the Act. The applicant is self-represented.

[3] Mr Walsh, of counsel, has made application that the respondent be granted permission to be represented by a lawyer. Section 596 of the Act deals with representation, and relevantly 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 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.”

[4] A summary of the reasons advanced by Mr Walsh is as follows:

● Mr Ahlburg of the respondent, who would have carriage of the matter if representation was denied, would be unable to represent himself effectively. This is because of the animosity toward him evident in the statements of the applicant’s witnesses, who he would be required to cross-examine;

● The respondent is a small business and there is no one else in the business who could conduct the case;

● The case involves factual disputes but will also require an analysis of the circumstances surrounding the cessation of the applicant’s employment, including whether he was constructively dismissed. In addition, the applicant’s witnesses raise issues of incorrect payments under the relevant award which may require determination; and

● There are issues surrounding the admissibility of the applicant’s evidence on the basis of relevance, which need to be aired and upon which counsel could provide assistance to the Commission.

[5] Representation is opposed by the applicant on the basis that he will be disadvantaged if representation is granted, and that he cannot afford to engage his own representation. He submitted that Mr Ahlburg holds a senior position in the respondent business and was more than capable of representing the respondent.

Consideration

[6] Section 596 involves the exercise of a discretionary power by the Fair Work Commission (the Commission). However, the discretion can only be exercised in favour of granting permission if one or more of the circumstances set out in s.596(2) of the Act are satisfied. The Federal Court in Warrell v Walton 1 discussed the representation provisions under the Act, and Flick J stated:

“[24] A decision to grant or refuse ‘permission’ for a party to be represented by ‘a lawyer’ pursuant to s 596 cannot be properly characterised as a mere procedural decision. It is a decision which may fundamentally change the dynamics and manner in which a hearing is conducted. It is apparent from the very terms of s 596 that a party ‘in a matter before FWA’ must normally appear on his own behalf. That normal position may only be departed from where an application for permission has been made and resolved in accordance with law, namely where only one or other of the requirements imposed by s 596(2) have been taken into account and considered. The constraints imposed by s 596(2) upon the discretionary power to grant permission reinforce the legislative intent that the granting of permission is far from a mere ‘formal’ act to be acceded to upon the mere making of a request. Even if a request for representation is made, permission may be granted ‘only if’ one or other of the requirements in s 596(2) is satisfied. Even if one or other of those requirements is satisfied, the satisfaction of any requirement is but the condition precedent to the subsequence exercise of the discretion conferred by s 596(2): i.e., ‘FWA may grant permission...’. The satisfaction of any of the requirements set forth in s 596(2)(a) to (c) thus need not of itself dictate that the discretion is automatically to be exercised in favour of granting ‘permission’.”

[7] In relation to the arguments advanced by the respondent, I find as follows. I accept Mr Walsh’s submission that there may be some hostility toward Mr Ahlburg from the applicant’s witnesses, but this may well be minimised if certain of the evidence is deemed to be irrelevant to the matters in issue.

[8] As to the potential complexities of the case, I do not understand that the applicant is arguing that he was constructively dismissed, rather that he was actually dismissed on 14 May 2014. On the information currently on the Commission file, whether the applicant was dismissed at the initiative of the employer is to be determined primarily by findings of fact. Similarly, the issue of Award entitlements, to the extent that this is relevant, does not appear to be an overly complex matter. The applicant will be on notice as to the respondent’s issues as to the relevance of certain evidence he intends to call.

[9] I have also taken into account that the application is to be heard by way of a determinative conference in accordance with s.398 of the Act. In my view, this will enable the Commission to provide guidance to the parties in relation to the procedural aspects of the conference and the issues that the Commission needs to determine, as well advising the persons appearing in the capacity of witnesses and/or advocates of the conduct expected of them.

Conclusion

[10] For the foregoing reasons, and taking into account that the applicant is unrepresented, I am not persuaded that the Commission’s discretion should be exercised in favour of the respondent’s application for representation, and the application is declined.

DEPUTY PRESIDENT

Appearances:

Mr McCreight

Mr Walsh, for the respondent

Conference details:

2014

Adelaide by telephone

14 August

 1 [2013] FCA 291

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