Trevor Standish v Craig Arthur Pty Ltd

[2015] FWC 4133

[2015] FWC 4133

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Trevor Standish
v
Craig Arthur Pty Ltd
(U2015/4610)

SENIOR DEPUTY PRESIDENT O’CALLAGHAN ADELAIDE, 18 JUNE 2015

Application for relief from unfair dismissal - representation - refused.

[1] This decision deals with a request, made by Mr Starke, of counsel, for permission to be granted, pursuant to s.596(2) of the Fair Work Act 2009 (the FW Act). This permission is sought on the basis that Mr Starke seeks to represent Craig Arthur Pty Ltd in proceedings to determine an unfair dismissal application made by Mr Standish. Mr Standish’s application is listed for a hearing on 7 July 2015. That hearing is specifically directed to the question of whether the termination of his employment was at the initiative of the employer.

[2] Section 596(2) states:

“596 Representation by lawyers and paid agents

....

(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] Consistent with a direction to this effect, Mr Starke provided the following written submissions:

“1. the Director of the employer has little experience in legal matters and industrial relations matters;

2. the employer does not have a person in its employ who is proficient in advocacy matters;

3. the employer would be placed at a disadvantage if it was not able to have legal representation;

4. in relation to matters pertaining to other Courts, in this State and other States a corporate entity is not allowed to be represented by a Director and employee in that it must have legal representation and we say that this should apply with respect to the employer in this case;

5. the Applicant’s daughter is a solicitor and works in advocacy and can represent the Applicant, to the detriment of the employer;

6. the employer says that both parties should be represented by persons proficient in advocacy to represent them which would result in efficient conduct of the matter before the presiding officer;

7. the matter will be dealt with more efficiently given the complexity of the matter;

8. it will be cost saving;

9. it would be unfair not to allow the employer to have legal representation as the employer is the Director and does not have staff to conduct the matter.

10. the Respondent is a party to the matter and has no specialist human resource staff while the Applicant has a family member who works in advocacy and has specialist training in that area; and

11. it will provide fair and equitable ground for all parties if they have representation.” 1

[4] Mr Standish has opposed a grant of permission. He has provided written submissions in this respect. In those submissions he advises that his daughter has a legal qualification but is not a legal practitioner. He advises that his daughter will not be representing him in this matter if the Fair Work Commission make such a direction. He asserts that the issues to be determined in relation to this application are not complex and that it would be fair and equitable for both parties to represent themselves in this matter.

[5] I have considered these submissions in the context of the limited information before me in this matter. I am not satisfied that the matter involves issues of any significant complexity such that Mr Starke’s involvement in it would enable it to be dealt with more efficiently. In this respect it simply seems to me that the determination of the question of whether Mr Arthur was dismissed at the employer’s initiative and, for that matter, potential consideration of the merits of the application will simply turn on the facts and evidence.

[6] Again, on the very limited information before me, I am not satisfied that Craig Arthur Pty Ltd would not be able to represent itself effectively in this matter.

[7] I have understood Mr Standish’s submission to confirm that he will represent himself. He may well have his daughter present to support him but I do not understand that she will be representing him such that this would create inherent unfairness. Accordingly, I am not satisfied that permission for representation should be granted pursuant to s.596(2)(c) should be granted on this basis.

[8] For the foregoing reasons, Mr Starke’s request for a grant of permission to represent Craig Arthur Pty Ltd in this matter is refused.

 1   Submissions on behalf of Respondent re representation, 10/06/15

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