Warren James v St Thomas Aquinas College Limited T/A St Thomas Aquinas College

[2016] FWC 5034

[2016] FWC 5034

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Warren James
v
St Thomas Aquinas College Limited T/A St Thomas Aquinas College
(U2016/5717)

COMMISSIONER BISSETT DARWIN, 26 JULY 2016

Application for permission to be legally represented in application for relief from unfair dismissal – permission granted.

[1] Mr Warren James has made an application for relief from unfair dismissal pursuant to s.394 of the Fair Work Act 2009 (the Act). Mr James was employed by St Thomas Aquinas College Limited T/A St Thomas Aquinas College (the College) as a teacher.

[2] On 13 May 2016 the Commission issue directions for the filing of submissions and evidence of the respective parties. Amended directions were issued on 21 June 2016.

[3] The College filed its material on 24 and 30 June 2016. In that material the College made submissions in which it sought permission pursuant to s.596 of the Act to be represented by a lawyer in the proceedings scheduled for 2-5 August 2016.

[4] On 15 July 2016 the Commission sent an email to Mr James advising that the College had made such an application and seeking any submission from him in objection to the application by 5.00pm on 22 July 2016.

[5] On 22 July 2016 Mr James filed further extensive material with the Commission. Included in this material are his submissions objecting to the grant of permission.

Legislation

[6] Section 596(2) of the Act sets out the grounds on which the Commission might grant permission for a party to be represented by a lawyer or paid agent.

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.

[7] The decision to grant permission is a two-step process – in the first instance, the Commission must be satisfied that at least one of the conditions in s.596(2)(a)-(c) has been met. It is not necessary that all of the conditions be met. Having reached the requisite satisfaction, it is then a matter of discretion for the Commission as to whether to grant permission. 1

Submissions

[8] The College seeks permission on the basis that the condition in s.596(2)(a) has been met.

[9] The College submits that there is a complex factual matrix raised in the witness statements filed in the matter. It says that there are significant facts in dispute and ‘forensic cross-examination’ will be required. These factors, it says, contribute to the matter being dealt with more efficiently if permission was granted to the College.

[10] In addition, the College relies on s.596(2)(b) for is application. It says that the College does not have any particular expertise in dealing with matters before the Commission and does not have anyone in a dedicated human resources role.

[11] The College says that it would be unfair not to allow it to be represented (s.596(2)(c)) as witnesses for the College will give evidence with respect to the conduct of Mr James. The issues raised in this evidence are sensitive and, in such circumstances, it will assist if the College is represented.

[12] Mr James submits that it would be unfair to allow the College to be represented when he is representing himself.

[13] He says that the material is not complex and the facts are clear and easy to understand.

[14] Further, he says that the College is part of a ‘world-wide concern’ operating a number of schools and with churches in all states and a seminary. He says it is not a small business and, while he accepts it does not have a designated human resources manager, it does have ‘many suitable personnel’ to choose from who could represent the College. Two of those he names he says are ‘the most logical choice as they are the drivers of the adverse actions’ against him and hence are familiar with the correspondence pertaining to the matter. One, in particular, he says is able to interpret legal words, terms and phrases.

[15] Mr James says there will be no time saving in granting permission ‘due to legal professionals speaking a different language to non-legal people’ and this will slow proceedings down. Further, he says delays will arise because the lawyers representing the College are not familiar with the material and that legal representatives will not be motivated to deal with the matter efficiently.

Consideration

[16] In reaching my decision on this matter, I have had the benefit of having received the extensive submissions from Mr James (including over 30 attachments), submissions and 16 witness statements of the College and further material of Mr James (including a further substantial number of attachments).

[17] In his further material, Mr James has sought that a substantial amount of material filed be ‘ruled inadmissible’ as the inclusion of the material ‘could be prejudicial to the outcome of the hearing.’ The material in question relates to matters found not to be substantiated in an investigation undertaken by Worklogic.

[18] The volume of material alone in the matter creates a level of complexity that might not otherwise be found in an unfair dismissal matter. There is extensive material attached to Mr James’ material and a substantial number of witness statements filed by the College. There is clearly a need to determine the relevance of a substantial part of the material that has been put before the Commission by both parties.

[19] On the basis of the material filed, I am satisfied that there is a substantial factual dispute between the parties that will need to be resolved. There is also a substantial amount of witness material – much of which will need to be put to witnesses in evidence and in cross-examination.

[20] On this basis alone, I am satisfied that the matter could be dealt with more efficiently if permission was granted to the College to be represented (s.596(2)(a) of the Act).

[21] Having found that the requirements of s.596(2)(a) are met, for the reason given below, I do not need to consider the requirements of s.596(2)(b) or (c).

Conclusion

[22] I am satisfied that the grant of permission will not extend the hearing time or create any greater level of complexity due to Mr James not being represented.

[23] There is no reason to assume that the grant of permission will extend the hearing time because of a lack of familiarity with the material by the College’s lawyers. The College has had its legal representatives prepare its material (as is permitted by the Act) and it is the Commission’s experience that legal representatives are generally well briefed on the matter in which they appear before the Commission.

[24] Further, I am satisfied that the lawyers representing the College have the acuity to not burden Mr James or the Commission with irrelevancies or unnecessary technicalities. They would be aware that the Commission is required to perform its functions in a way that is just and fair, is quick, informal and avoids unnecessary technicalities and is open and transparent (s.577 of the Act). I am comfortable that this can be achieved with the grant of permission.

[25] Having found that the requirements of s.596(2)(a) of the Act are met, I am satisfied that I should exercise my discretion and grant permission.

[26] Permission is therefore granted for the College to be represented in the matter.

COMMISSIONER

 1   Oratis v Melbourne Business School[2014] FWCFB 3869 at paragraph [5].

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