[2012] FWA 7407
The attached document replaces the document previously issued with the above code on 9 October 2012.
The document has been amended in the first line of paragraph [11], to replace “Applicant” with “Respondent”.
Laura Fitzpatrick
Relief Associate to Commissioner Booth
Dated 9 October 2012
[2012] FWA 7407 |
|
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Peter Viavattene
v
Health Care Australia
(U2012/10654)
COMMISSIONER BOOTH |
BRISBANE, 9 OCTOBER 2012 |
Application for unfair dismissal remedy – permission to be represented granted.
[1] This matter concerns an application for leave in relation to the appearance of a legal representative for the Respondent, Health Care Australia at an unfair dismissal hearing beginning on 17 October 2012.
[2] The Respondent has made an application pursuant to section 596 of the Fair Work Act 2009 (the Act) for permission to be represented at the hearing. That representative is a lawyer. The Respondent provided written submissions in accordance with the directions. The Applicant indicated he objected to legal representation at a directions hearing. He did not provide written submissions in accordance with the directions. A further email to the Applicant dated 24 September 2012 reminded the Applicant of the directions issued and asked if he intended to lodge submissions as to why the Respondent should not have legal representation. No submissions were provided.
[3] Section 596 of the 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 FWA (including by making an application or submission to FWA on behalf of the person) by a lawyer or paid agent only with the permission of FWA.
(2) FWA may grant permission for a person to be represented by a lawyer or paid agent in a matter before FWA 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 FWA 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) FWA’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 or 2-6 (which deal with modern awards and minimum wages).
(4) For the purposes of this section, a person is taken not to be represented by a lawyer or paid agent if the lawyer or paid agent:
(a) is an employee or officer of the person; or
(b) is an employee or officer of:
(i) an organisation; or
(ii) an association of employers that is not registered under the Fair Work (Registered Organisations) Act 2009; or
(iii) a peak council; or
(iv) a bargaining representative;
that is representing the person; or
(c) is a bargaining representative.
[4] Even though the Applicant has not made submissions objecting to representation by a lawyer it is still the case that representation by a lawyer requires permission of FWA.
[5] In deciding whether to grant this application, the Respondent submits that legal representation of the Respondent would enable the matter to be dealt with more efficiently taking into account the complexity of the matter.
[6] In particular the Respondent refers to the jurisdictional issue concerning whether the Applicant was dismissed. The Applicant asserts he was dismissed and the Respondent denies this assertion.
[7] The Applicant refers to alleged contraventions of a number of sections of the Act, Information Privacy Act 1988 and the Work Health and Safety Act 2011.
[8] Also the Respondent submits the matter is complex because the Applicant asserts that in dealing with the unfair dismissal application FWA is required to determine allegations that the Respondent breached general protections in part 3-1 of the Act. The Respondent referred to the case of Roland v Austar Coal Mine Proprietary Limited 1 where Commissioner Stanton concluded that allegations of this type are complex and that legal representation would assist in its effective and efficient resolution.
[9] The Respondent also referred to a number of factual matters, which are in serious dis-pute. Resolution of these factual disputes, will be more efficiently dealt with if the Respondent is represented by a lawyer.
[10] The Respondent referred to a number of other issues that it submits contributes to the complexity. These include the capacity of the Tribunal to reinstate the Applicant to a client of the Respondent, issues of proof around any financial loss suffered in the event of dismissal was deemed to be harsh, unjust or unreasonable.
[11] The Respondent also made submissions under s.596(2)(b) it would be unfair not to allow the Respondent to be represented because the Respondent is unable to represent itself effectively. It is on the basis that the Respondent has no lawyers on staff nor any industrial advocates who possess necessary skills. Further there is personal animosity towards the Respondent and a history of representation. These matters should be taken into account in relation to the Respondent.
[12] On the question of fairness between the Respondent and the Applicant, the Applicant referred to a letter from the Queensland Nurses Union to FWA and other comments made by the Applicant. The Respondent submitted that the Applicant has obtained advice but has chosen to represent himself.
Discussion
[13] The decision to allow a party to be represented in a matter is discretionary and one that can only be exercised if one or more of the conditions in s.596(2) (a)-(c) is satisfied.
[14] The Applicant has raised a significant number of allegations of breaches of the Act, the Information Privacy Act 1988 and the Work Health and Safety Act 2011. There are complexities raised by the Applicant in relation to this dismissal based on the extensive references to both the Act and the other acts.
[15] I have concluded that permission for the Respondent to be represented by a lawyer will enable the matter to be dealt with more efficiently taking into account the complexity of the matter.
[16] It should be clarified however that the Tribunal will provide assistance to the Applicant to ensure procedural fairness and that there is no disadvantage by any lack of understanding of issues or hearing processes.
[17] For the reasons set out above, I exercise my discretion under s.596 (1) of the Act to grant permission for the Respondent to be represented by a lawyer.
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