The Applicant v Apple Pty Ltd T/A Apple - [2018] FWC 2696

[2018] FWC 2696

The attached document replaces the document previously issued with the above code on 14 May 2018.

On application of the Applicant, and by consent of the Respondent, the name of the Applicant has been redacted (by unpublished Order of Deputy President Anderson 18 September 2018 PR700623).

Associate to Deputy President Anderson

Dated 20 September 2018

[2018] FWC 2696

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

Section 394 - Application for unfair dismissal remedy

XXXxxxxxxx Xxxxx The Applicant

Apple Pty Ltd T/A Apple

(U2018/2128)

Deputy President Anderson

ADELAIDE, 14 MAY 2018

Application for an unfair dismissal remedy – section 596 representation – request by employer opposed by applicant – efficiency of proceedings – fairness between the parties - permission refused

Xxxxxxxx Xxxx The Applicant has applied to the Fair Work Commission (the Commission) under section 394 of the Fair Work Act 2009 (the FW Act) for an unfair dismissal remedy in relation to his dismissal by Apple Pty Ltd (Apple or ‘the employer’). He claims to have been unfairly dismissed on 12 February 2018.

The employer claims that Xx Xxxxx the Applicant’s dismissal was not unfair in that he was dismissed for serious misconduct following an internal investigation. On 26 March 2018 conciliation of the application was conducted by a Commission-appointed conciliator. It was not resolved. It was then referred to a member of the Commission for hearing and determination.

On 4 April 2018 lawyers for Apple filed a Notice of Representative Commencing to Act (F53).

On 6 April 2018 I conducted a directions hearing.[1] I listed the matter for hearing. I made orders for the filing of materials. At the directions hearing, both Xx Xxxxx the Applicant and Apple sought to be legally represented. I granted permission for the purposes of that proceeding. Ms Birss of Mellor Olsson for Xx Xxxxx the Applicant indicated that Xx Xxxxx the Applicant did not intend to be legally represented at the hearing. The employer advised that it would continue to seek permission to be legally represented. I directed that written submissions be made on representation.

I received written submissions on representation from the employer on 24 April.[2] Xx Xxxxx The Applicant confirmed on 27 and 30 April that he would be self-represented. On 4 May he filed written submissions opposing the employer’s request.[3]

This decision determines the employer’s request for representation at the hearing on 5, 6 and 7 June 2018.

The Legal Principles

Section 596 of the FW Act 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…

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.

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Details

Case: [2018] FWC 2696
Decision Date: 14 MAY 2018

CaseChat Overview and Summary

The Applicant sought relief from an unfair dismissal decision against Apple Pty Ltd, trading as Apple, in the Fair Work Commission. The Applicant had been dismissed from their employment and contested the fairness of the dismissal, requesting representation by a union official during the proceedings. Apple opposed this request, arguing it would be inefficient and unfair to allow such representation. The Commission was required to determine whether the request for union representation was justified under the circumstances, balancing the efficiency of the proceedings and fairness between the parties.

The legal issues before the Commission centred on the interpretation and application of section 596 of the Fair Work Act. This section allows for the inclusion of a union official in proceedings related to unfair dismissal, provided it does not unduly hinder the efficiency of the proceedings or prejudice the fairness between the parties. The Commission had to assess whether the Applicant's request for union representation would meet these criteria, considering the specific circumstances of the case and the potential impact on the proceedings.

In its decision, the Commission found that the Applicant's request for union representation did not align with the principles of efficiency and fairness as outlined in section 596. The Commission determined that allowing such representation would likely cause unnecessary delays and complications in the proceedings, thereby undermining their efficiency. Furthermore, the Commission found that the request did not advance the fairness between the parties, as it did not present a compelling case for the necessity of union involvement. Consequently, the Commission refused the Applicant's request for union representation, deeming it inappropriate under the given circumstances.

The Fair Work Commission ruled that the Applicant's request for union representation in the unfair dismissal proceedings was denied. The Commission concluded that permitting such representation would impede the efficiency of the proceedings and did not serve the interest of fairness between the parties. As a result, the Commission dismissed the Applicant's application for unfair dismissal remedy without the inclusion of a union official.

Orders