[2010] FWA 1143

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Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Ms Lois Joy O'Grady
Royal Flying Doctor Service of Australia (South Eastern Section)



Termination of Employment. Legal representation.

[1] 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.

[2] 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.

[3] S.385 provides:

[4] S.389 prescribes:

[5] The applicant opposes the respondent being legally represented in this matter.

[6] Directions were issued to the parties to provide written submissions.

[7] 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.

[8] S.596 prescribes:

[9] 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.

[10] 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.

[11] Reference was made to the decision of Commissioner Harrison in Rodney James Rodgers v Hunter Valley Earthmoving (HVE) (Print [2009] FWA 572) (Hunter Valley) where FWA refused permission for legal representation to the respondent in that matter.

[12] The applicant referred also to the Explanatory Memorandum published at the time of the introduction of the Act. It provides:

[13] The respondent relied on each of the criteria found in s.596(2).

[14] 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.

[15] 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.

[16] Cross-examination of witnesses is likely to be necessary.

[17] 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.

[18] 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.

[19] 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.”

[20] 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”

[21] S.381 of the Act, referred to by the applicant, provides:

[22] 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.


[23] To grant permission for legal representation is an exercise of discretion prescribed in s.596 of the Act.

[24] 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.

[25] The nature of the matter for determination is whether jurisdiction exists for FWA to hear and determine the substantive application.

[26] The determination of jurisdiction is a legal issue.

[27] 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.

[28] 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.

[29] 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.

[30] 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’.

[31] Accordingly I exercise my discretion to allow legal representation which is restricted to the argument about jurisdiction only.

[32] 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.

[33] 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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