Susana Gomes v OE & Dr Pope Pty Ltd T/A Pope Packaging - [2014] FWC 4482

[2014] FWC 4482

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Susana Gomes
v
OE & DR Pope Pty Ltd T/A Pope Packaging
(U2014/6388)

COMMISSIONER HAMPTON

ADELAIDE, 8 JULY 2014

Representation - application for relief from unfair dismissal - whether permission should be granted for employer to be represented - permission granted.

[1] This decision concerns a preliminary matter that has arisen in the context of an application by Ms Susan Gomes made under s.394 of the Fair Work Act 2009 for relief against an alleged unfair dismissal. The respondent employer is OE & DR Pope Pty Ltd T/A Pope Packaging (Pope Packaging).

[2] Pope Packing has applied for permission to be represented by a lawyer pursuant to s.596 of the Act and this is opposed by Ms Gomes. This decision deals with that matter.

[3] Ms Gomes is represented by the Legal and Industrial Officer of the SA Branch of the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU), Mr Hardie.

[4] The determination of the s.394 application will involve, amongst other matters, the consideration of a jurisdictional issues associated with whether the dismissal was a genuine redundancy within the meaning of s.389 of the Act, and if not, whether the dismissal was unfair. It has been agreed that all matters would be heard together.

[5] Section 596 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…

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.

Continue reading Susana Gomes v OE & Dr Pope Pty Ltd T/A Pope Packaging

Details

AGLC: Susana Gomes v OE & Dr Pope Pty Ltd T/A Pope Packaging [2014] FWC 4482
Case: [2014] FWC 4482
Decision Date: 8 JULY 2014

CaseChat Overview and Summary

Susana Gomes brought a claim for unfair dismissal against OE & Dr Pope Pty Ltd trading as Pope Packaging. The Federal Court was tasked with deciding whether the employer should be granted permission to be represented at the hearing of the application for relief from dismissal. The core issue before the court was whether the employer, represented by a legal representative, should be allowed to participate in the proceedings. The court considered the principles governing the right to representation in such proceedings and assessed the potential impact on the fairness of the proceedings.

The court examined the relevant statutory provisions and case law to determine the appropriateness of allowing the employer to be represented. It noted that the right to representation is not absolute and must be balanced against the need for the proceedings to be conducted fairly and efficiently. The court also considered the employer's ability to effectively present its case and the potential for prejudice to the applicant if representation was allowed. Ultimately, the court found that granting permission for the employer to be represented would not unduly prejudice the applicant and would facilitate a fair and efficient resolution of the dispute.

In light of its findings, the court granted permission for the employer to be represented by legal counsel at the hearing of the application. This decision ensures that both parties have an opportunity to be adequately represented and that the proceedings can proceed in a manner that is fair and just. The court's decision was based on a careful consideration of the relevant legal principles and the specific circumstances of the case.

Orders