Steven Post v NTI Limited T/A NTI

[2015] FWC 1497

[2015] FWC 1497

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Steven Post
v
NTI Limited T/A NTI
(U2014/14956)

COMMISSIONER WILLIAMS PERTH, 10 MARCH 2015

Respondent representation.

[1] 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 in the above matter.

[2] Section 596 (2) of the Act provides that the Commission can only exercise the discretion to give permission for a person to be represented by a lawyer or paid agent where:

• it would enable the matter to be dealt with more efficiently, taking into account the complexity of the matter; or



• 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



• 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.

[3] Both parties have provided written submissions to the Commission on this issue. Mr Steven Post (the applicant) opposes the respondent being represented by a barrister however he does not object to the respondent being represented by a lawyer or paid agent. Regardless of the applicant’s view whether a lawyer or paid agent is permitted to represent the respondent is a matter for the Commission to determine.

[4] It is common ground in this matter that prior to the respondent dismissing the applicant the respondent required the applicant’s attendance at disciplinary meetings and after this the parties engaged in an ongoing exchange of correspondence including multiple responses by the applicant to show cause letters from the respondent. Throughout this process which took more than one month both parties were legally represented. The volume of this correspondence by itself does create some degree of complexity in this matter.

[5] In addition I agree with the respondent that some of the allegations of the applicant against the respondent at times appears to involve other jurisdictions adding a further level of complexity in this application.

[6] In these circumstances I am satisfied that the respondent being represented by a lawyer will enable this matter to be dealt with more efficiently.

[7] Separately there is no evidence that the various staff of the respondent who have human resource management experience are also experienced in representing an employer in applications such as this in a hearing before this Commission. Whilst these staff may be able to represent the respondent I am not satisfied that they will be able to do so effectively and consequently it would be unfair not to allow the respondent to be represented by a lawyer.

[8] In conclusion I have considered the provisions of section 596 (2) of the Act in the context of this particular application and the circumstances of both parties and have decided to grant permission for the applicant to be represented by a lawyer or a paid agent. Having made this decision it is entirely the respondent’s choice as to whether they engage a paid agent, solicitor or barrister to represent them at the hearing of this matter.

COMMISSIONER

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