FWA 1143
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
DEPUTY PRESIDENT LEARY
HOBART, 17 FEBRUARY 2010
Termination of Employment. Legal representation.
 This is an application pursuant to s.394 of the Fair Work Act (the Act) by Lois Joy O’Grady (the applicant) alleging that her termination of employment by the Royal Flying Doctor Service of Australia South Eastern Section (the respondent) was unfair.
 The respondent objects to the application on the grounds that the termination of the applicant was a genuine redundancy and accordingly pursuant to s.398 of the Act FWA is without the necessary jurisdiction to hear and determine the application.
 S.385 provides:
“A person has been unfairly dismissed if FWA is satisfied that:
(a) the person has been dismissed; and
(b) the dismissal was harsh, unjust or unreasonable; and
(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and
(d) the dismissal was not a case of genuine redundancy.” (my emphasis)
 S.389 prescribes:
“Meaning of genuine redundancy
(1) A person’s dismissal was a case of genuine redundancy if:
(a) the person’s employer no longer required the person’s job to be performed by anyone because of changes in the operational requirements of the employer’s enterprise; and
(b) the employer has complied with any obligation in a modern award or enterprise agreement that applied to the employment to consult about the redundancy.
(2) A person’s dismissal was not a case of genuine redundancy if it would have been reasonable in all the circumstances for the person to be redeployed within:
(a) the employer’s enterprise; or
(b) the enterprise of an associated entity of the employer.”
 The applicant opposes the respondent being legally represented in this matter.
 Directions were issued to the parties to provide written submissions.
 In a written submission the applicant submitted that none of the circumstances found in s.596(1) and (2) of the Act apply in respect to this application.
 S.596 prescribes:
“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.”
 The applicant contends that the matter will not be more efficiently dealt with by legal representation and that the respondent does not satisfy the ‘unfairness grounds’ of s.596(2)(c)of the Act. Further it was argued that as the respondent is a Not For Profit organisation it would benefit by not incurring any further expense. It was also argued that the respondent employs specialist Human Resources staff capable of representing the organisation.
 The applicant submitted that she will not be legally represented but will be assisted by her son who is not a lawyer. She said she cannot afford any further legal representation.
 Reference was made to the decision of Commissioner Harrison in Rodney James Rodgers v Hunter Valley Earthmoving (HVE) (Print  FWA 572) (Hunter Valley) where FWA refused permission for legal representation to the respondent in that matter.
 The applicant referred also to the Explanatory Memorandum published at the time of the introduction of the Act. It provides:
“2291. FWA is intended to operate efficiently and informally and, where appropriate, in a non-adversarial manner. Persons dealing with FWA would generally represent themselves. Individuals and companies can be represented by an officer or employee, or a member, officer or employee of an organisation of which they are a member, or a bargaining representative. Similarly, an organisation can be represented by a member, officer or employee of the organisation. In both cases, a person from a relevant peak body can be a representative
2292. However, in many cases, legal or other professional representation should not be necessary for matters before FWA. Accordingly, clause 596 provides that a person may be represented by a lawyer or paid agent only where FWA grants permission.
2296. In granting permission, FWA would have regard to considerations of efficiency and fairness rather than merely the convenience and preference of the parties.”
 The respondent relied on each of the criteria found in s.596(2).
 It was submitted that the matter will be dealt with more efficiently with legal representation as FWA must first decide whether the dismissal was a genuine redundancy before considering the merits of the application.
 It was submitted that this is a new provision which did not exist in previous legislation and is likely to involve consideration of the definition of genuine redundancy and the exclusion under s.389(2). It was argued that these are complex and technical legal provisions on which the parties are likely to have opposing views. Likewise issues in respect to the onus of proof and the question of redeployment will also arise.
 Cross-examination of witnesses is likely to be necessary.
 The respondent is a small Not For Profit organisation and does not employ any lawyers or industrial relations experts. The respondent employs a Human Resources Manager who has no advocacy training or experience and has “never attended a hearing in any court or tribunal including as a witness.” The Human Resources Manager could be a witness as he was involved in the applicant’s redundancy.
 The Explanatory Memorandum notes that “In granting permission FWA would have regard to the considerations of efficiency and fairness rather than merely the convenience and preference of the parties.” The respondent noted that the applicant has elected not to seek representation and as such that should not preclude the respondent being granted permission to be legally represented. It was submitted that the respondent engages a legal firm to provide all legal support in relation to employment and industrial relations issues which arise in the respondent’s business.
 In respect to the decision of Commission Harrison in Hunter Valley the respondent argued that it should be noted that the Commissioner had said that the case before him concerned a “relatively simple factual contest” that did not require “forensic cross-examination or is of a complex nature.”
 The applicant in response argued that the application by the respondent is not a complex matter and is no more than a “dispute between me and the RFDS about whether or not I was lawfully made redundant and it will rely on the facts. As I understand it there isn’t an onus of proof and FWA has to inform itself as it sees fit.” And further “I thought cross examination only related to court proceedings and that questioning of the parties would be on a more informal basis in keeping with the new principles of the Act. If the respondent is allowed lawyers to cross examine witnesses, I submit that this would be unfair”
 S.381 of the Act, referred to by the applicant, provides:
(1) The object of this Part is:
(a) to establish a framework for dealing with unfair dismissal that balances:
(i) the needs of business (including small business); and
(ii) the needs of employees; and
(b) to establish procedures for dealing with unfair dismissal that:
(i) are quick, flexible and informal; and
(ii) address the needs of employers and employees; and
(c) to provide remedies if a dismissal is found to be unfair, with an emphasis on reinstatement.
(2) The procedures and remedies referred to in paragraphs (1)(b) and (c), and the manner of deciding on and working out such remedies, are intended to ensure that a “fair go all round” is accorded to both the employer and employee concerned.
Note: The expression “fair go all round” was used by Sheldon J in in re Loty and Holloway v Australian Workers’ Union  AR (NSW) 95.
 The applicant submitted that the comment by the respondent to her current employment status allowing her time to prepare for the hearing is irrelevant. I agree and disregard the comment.
 To grant permission for legal representation is an exercise of discretion prescribed in s.596 of the Act.
 In all of the circumstances in this matter I am of the view that it is fair and appropriate to grant permission for legal representation. The permission for legal representation will be granted to both parties.
 The nature of the matter for determination is whether jurisdiction exists for FWA to hear and determine the substantive application.
 The determination of jurisdiction is a legal issue.
 Legal representation will allow the matter to be dealt with more efficiently. There are complex issues to be considered and the respondent is a Not For Profit organisation without a person experienced in workplace relations advocacy. The onus of proof in respect to the issue of jurisdiction rests with the party challenging the jurisdiction. Legal representation should allow the respondent to provide appropriate argument and assistance to FWA in the hearing and determination of the jurisdiction issue.
 Having had regard to the submissions and documents provided, and/or attached to the application, it would appear that there will be contested facts, the possibility of witness evidence and a disputed application for the production of documents.
 This is not a ‘simple factual contest’, as was the case in Hunter Valley, but a contest about jurisdiction. The jurisdictional ground being challenged did not exist under previous legislation and may well raise issues not previously considered.
 I note the submissions of the applicant in respect to her view of the ‘informal’ nature of FWA proceedings. As stated in the Explanatory Memorandum “FWA is intended to operate efficiently and informally and, where appropriate, in a non-adversarial manner” where parties “would generally represent themselves.” However this is a threshold matter challenging the jurisdiction of FWA which is a legal question and will be determined following a formal hearing, albeit a hearing which will be somewhat less formal than a ‘court’ proceeding. Nonetheless witness evidence will need to be tested by examination and cross examination if necessary. The hearing in respect to jurisdiction will not deal with the substantive application, that being whether the applicant’s termination was ‘unfair’.
 Accordingly I exercise my discretion to allow legal representation which is restricted to the argument about jurisdiction only.
 If it is determined that jurisdiction exists the application for legal representation will need to be revisited in respect to the hearing of the substantive application.
 The matter will be listed for hearing in Launceston at 12.30pm on Monday 1 March 2010.
Final written submissions:
Lois O’Grady (applicant) 11 January 2010
Rachel Bernasconi/ Talia Ross; Blake Dawson (on behalf of respondent) 18 January 2010
Lois O’Grady (applicant) 22 January 2010
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