DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Adam O’Connell
v
Wesfarmers Kleenheat Gas Pty Ltd T/A Kleenheat Gas
(U2014/13720)

Application for relief from unfair dismissal - objection to legal representation.

[1] On 12 November 2014, Mr Adam O’Connell (Mr O’Connell or Applicant) made application to the Fair Work Commission (Commission) seeking a remedy for alleged unfair dismissal from his former employer, Wesfarmers Kleenheat Gas Pty Ltd (Wesfarmers or Employer).

[2] The application was made pursuant to s.394 of the Fair Work Act 2009 (FW Act).

[3] This Decision deals with Mr O’Connell’s objection to the Employer being represented by a lawyer in the hearing into the substantive merits of his application on 7 April 2015.

LEGISLATIVE FRAMEWORK

[4] Section 596 of the FW Act sets out the provisions when the Commission may grant permission for a party to proceedings to be represented by a lawyer or paid agent as follows:

“(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.

(3) The FWC’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 Registered Organisations Act; or

(iii) a peak council; or

(iv) a bargaining representative;

that is representing the person; or

(c) is a bargaining representative.”

RELEVANT BACKGROUND

[5] Mr O’Connell’s application on 12 November 2014 was made by a lawyer acting on his behalf.

[6] A lawyer, acting on behalf of the Employer filed its response on 1 December 2014.

[7] Both parties were represented by lawyers in the conciliation conference with a Conciliator.

[8] Following unsuccessful conciliation, I issued Directions on 5 January 2015 for the hearing on 7 April 2015.

[9] On 9 January 2015, Mr O’Connell’s legal firm gave notice, by Form F54, that it ceased to act for the Applicant.

[10] The Applicant, by email dated 17 March 2015 sought that the Commission not grant permission for a lawyer to represent the Employer.

[11] On 23 March 2015, the Employer’s solicitor provided a written submission seeking leave for the Employer to be represented by a lawyer.

[12] On 23 March 2015, the Applicant provided further particulars as to why permission for the Employer to be legally represented should be denied.

[13] On 27 March 2015, the Employer’s legal representative provided a further written submission why leave should be granted for the Employer to be represented by a lawyer.

[14] On 30 March 2015, the Applicant provided an extensive submission as to why the Commission should dismiss the Employer’s application to be represented by a lawyer at the hearing.

EMPLOYER’S SUBMISSION

[15] The Employer, in summary, submits that leave should be granted to a lawyer to represent it in the hearing as a result of the following:

• it is a matter with a relative degree of complexity because the significant and complex factual dispute arising from the conflicting and divergent accounts given by the Employer’s witnesses and the Applicant concerning Mr O’Connell’s conduct;



• much of the evidence is contested;



• matters of credibility;



• evidence is lengthy and substantial and will need to be efficiently managed and properly presented;



• number of witnesses - presently 12;



• the seriousness about the Applicant’s conduct which includes abuse and threats to a colleague, punching another colleague, dangerous driving and breaches of workplace policy;



• the Applicant was dismissed for serious misconduct and in such circumstances places an evidential onus on the Employer;



• issues surrounding the Applicant’s conduct extend over an extensive period of time and are reasonably complicated;



• the senior Human Resources person for the Employer has never appeared in legal proceedings on any nature and does not have the experience required to properly present the Employer’s case;



• there is no other person in the Employer’s Human Resources group who has appeared before the Commission in the capacity of a representative or has the relevant skills to do so;



• the senior Human Resources person is one of the Employer’s key witnesses who investigated the complaint, convened various meetings with the Applicant and was one of the decision makers, in the decision to terminate the Applicant’s employment;



• it would be inappropriate for the senior Human Resources officer to make submission on issues after providing key witness evidence;



• the lawyer seeking representation has been responsible for preparing the Employer’s response to the application since it was first made. As a consequence, the lawyer is familiar with the facts, relevant issues and the legal submissions;



• in the two (2) weeks since the Applicant’s objection, it would be extremely difficult to ‘train” a member of the Human Resources department to present the Employer’s case in resisting the application. In such circumstances, it would be inefficient for both parties if the Employer is not represented by a person who had detailed knowledge of the matter from commencement of the application;



• in view of the fact that the Applicant was legally represented in making the originating application, and at the conciliation conference, the Applicant has an understanding on the law as it relates to unfair dismissal and serious misconduct;



• any perceived unfairness by the Applicant is outweighed by the risk that, in being represented:

- key evidentiary issues may be overlooked;
- the evidence of witnesses may not be properly and/or vigorously tested under cross examination;
- relevant submissions on the law may be overlooked, and inaccurate or misrepresented;
- the process is likely to be more prolix.

• the potential of the Applicant to obfuscate the hearing by his advocacy; and



• the additional complexity that two of the Employer’s witnesses, will give evidence that the Applicant threatened or assaulted them.

APPLICANT’S SUBMISSION

[16] In summary, the Applicant in opposing a lawyer being given leave to represent the Employer, submits:

• it may not be fair and just for one party to be represented by a lawyer when the other is not;



• the intention of Parliament that persons dealing with the Commission should generally represent themselves;



• there are no jurisdictional or technical legal arguments;



• the factual dispute is not as complex as the Employer submits;



• all witness evidence of the Employer has been filed in the form of written witness statements;



• the number of witnesses (10) for the Employer is of its own making;



• the Employer is a large entity and has a dedicated human resource department. “Advocacy is part of any Human Resource qualification associated with human resources management”;



• he has no “formal” advocacy training;



• he has no experience in the preparation of legal cases;



• inability to afford legal representation;



• lack of a “level playing field”.

RELEVANT BACKGROUND

[17] The Applicant, at the time of his dismissal, was employed as the Employer’s Business Representative, Western Australia (North) on a salary of $95 000 per annum.

[18] On 19 September 2014, the Employer received a grievance from Mr Jordan Ritchie which alleged that Mr O’Connell used offensive and threatening behaviour toward him at the National Sales Conference on 15 September 2014. Put shortly, the allegations were that the Applicant said to Mr Ritchie, “I fucking hate you”, “fuck off” (multiple times), “drop dead”, “fuck off and die”, “go kill yourself”, “every time I see you I just want to punch you head in”, “fuck off out of my face” and “loser”.

[19] Following an investigation on 22 October 2014, Mr O’Connell’s employment was terminated with immediate effect for the following reasons:

“1. repeatedly engaged in threatening, offensive, and bullying behaviour towards a fellow employee and threatened to punch that employee during the evening of Monday 15 September 2014 in breach of the WesCEF Code of Conduct and Discrimination Harassment Bullying Policy;

2. carried on a private vacation property rental business through your work email and mobile in breach of the Electronic Usage Policy and your employment contract signed by you on 26 February 2008;

3. disobeyed a lawful request by operating your work vehicle on 26 September 2014 in breach of your employment obligations;

4. drove recklessly on 26 September 2014 resulting in a complaint from a member of the public and the potential to cause serious and imminent risk to yourself, other parties and also the reputation of the Company; and

5. punched a fellow employee at the previous sales conference evident at the Vines Resort in or around May 2005 in breach of your employment obligations.”

[20] The process of the investigation consisted of the allegations being put to Mr O’Connell, a response from the Applicant, further allegations, responses and the Applicant providing a WorkCover WA certificate of incapacity to work from 13 October to 13 November 2014.

CONSIDERATION OF EMPLOYER’S APPLICATION TO BE REPRESENTED BY A LAWYER PURSUANT TO s.596 OF THE FW ACT

[21] Flick J, in Warrell v Walton [2013] FCA 291 stated:

“…It is apparent from the very terms of s 596 that a party “in a matter before FWA” must normally appear on his own behalf. That normal position may only be departed from where an application for permission has been made and resolved in accordance with law, namely where only one or other of the requirements imposed by s 596(2) have been taken into account and considered. The constraints imposed by s 596(2) upon the discretionary power to grant permission reinforce the legislative intent that the granting of permission is far from a mere “formal” act to be acceded to upon the mere making of a request. Even if a request for representation is made, permission may be granted “only if” one or other of the requirements in s 596(2) is satisfied. Even if one or other of those requirements is satisfied, the satisfaction of any requirement is but the condition precedent to the subsequence exercise of the discretion conferred by s 596(2): i.e., “FWA may grant permission…”. The satisfaction of any of the requirements set forth in s 596(2)(a) to (c) thus need not of itself dictate that the discretion is automatically to be exercised in favour of granting “permission”.

The appearance of lawyers to represent the interests of parties to a hearing runs the very real risk that what was intended by the legislature to be an informal procedure will be burdened by unnecessary formality. The legislative desire for informality and a predisposition to parties not being represented by lawyers emerges, if not from the terms of s 596, from the terms of the Explanatory Memorandum to the Fair Work Bill 2008 which provided in relevant part as follows:

“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 or 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, cl 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.”

Section 596(2)(a) it would enable the matter to be dealt with more efficiently, taking into account the complexity of the matter

[22] When the reason for the dismissal relates to the employee’s conduct, it is necessary for the Commission to determine, on the balance of probabilities, whether the alleged conduct occurred, and if so, whether it was a sufficient reason for termination 1.

[23] Further, the question of whether the alleged conduct took place and what it involved is to be determined by the Commission on the basis of the evidence in the proceedings before it. The test is not whether the employer believed on reasonable grounds after sufficient enquiry that the employee was guilty of the conduct which resulted in the termination. 2

[24] Summary dismissal for misconduct may be warranted in certain circumstances. The Fair Work Regulations relevantly defines at 1.07 the meaning of serious misconduct.

[25] Notwithstanding, the misconduct may have resulted in summary dismissal, the test remains the same, that is, the decision to terminate the employee’s employment must be “sound, defensible and well founded”.

[26] As Flick J observed in Warrell v Walton, “a conclusion as to whether conduct is “misconduct” is ordinarily a question of fact and the necessity of the Commission to make findings of fact”.

[27] The Agreed Statement of Facts consists of 10 lines in which there is no mention of the incident on 15 September 2014.

[28] The Applicant has provided 81 statements of fact of which the Employer agrees to 18.

[29] The Applicant’s witness statement does not go into detail of his conduct on 15 September but relies upon his Statement of Facts. In the Statement of Facts, Mr O’Connell denies he used the words set out in paragraph [18] and denies any act of threatening physical violence.

[30] Also in his Statement of Facts; Mr O’Connell alleges that the investigation was either intentionally or incompetently, not thorough enough.

[31] Mr O’Connell states that the investigation was biased and that the Employer had made up its mind to dismiss him before considering his responses to the further allegations.

[32] Mr O’Connell asserts that there is no conflict of interest with the Employer when using its email in relation to the rental of his holiday home.

[33] The Applicant claims that he was not aware of any instruction not to use the Employer’s vehicle when stood down pending an investigation into the grievance allegations.

[34] The Applicant denies the allegation, in relation to a complaint by a member of the public, that he was driving erratically.

[35] Mr O’Connell alleged that the Employer did not abide by its own policy of serving alcohol in a responsible manner on the evening of 15 September 2014.

[36] Finally, the Applicant asserts that five (5) matters identified by the Employer are not matters relating to reasons for his termination of employment.

[37] In conclusion, the Applicant referred to R J Rogers v Hunter Valley Earthmoving Company Pty Ltd [2009] FWA 572 (Rogers) in objecting to the Employer being represented by a lawyer. Rogers is relevant to my consideration for two (2) reasons. Firstly, the general observation that the discretion exercised by the Commission depends upon the particular facts and circumstances of each case. Secondly, in that application, Rogers admitted to engaging in the behaviour which led to his termination of employment.

[38] In this application, the Applicant denies the primary conduct that led to his termination of employment. To determine the truth of what happened on the alcohol “fuelled” evening of a National Sales Conference, will require detailed cross examination. This will not be a relatively simple fact of “he said, she said”.

[39] The context of the primary reason for Mr O’Connell’s dismissal, is complex as demonstrated by approximately 70 pages of the Applicant’s Statement of Facts, 10 lines of Agreed Statement of Facts and 12 witnesses. In such circumstances, I am satisfied, for the facts and circumstances set out above, that the requirement of s.596(2)(a) of the FW Act would be met if the Employer was represented by a lawyer.

[40] The documentary material submitted as part of the Directions clearly indicates the serious and complex issues, for determination by the Commission. The word “efficiently” is defined in the Australian Concise Oxford Dictionary (ACOD) as “productive of effect; (of person) competent, capable”. Lawyers who appear before the Commission, generally prepare and execute their client’s case efficiently, and more efficiently, for obvious reasons, than a person who is not legally trained. In view of the numerous discrete issues raised in this application, I am satisfied that the matter would proceed more efficiently if the Employer was represented by a lawyer.

[41] Having determined that the condition in s.596(2)(a) of the FW Act has been satisfied, I consider it appropriate to exercise general discretion, to grant permission for the Employer to be represented by a lawyer pursuant to s.596 (1) of the FW Act.

[42] In exercising my general discretion, I note that the lawyer intending to represent the Employer has had carriage of this matter since the application was made. Secondly, the Employer does not have persons who have familiarity with presenting cases before the Commission. Thirdly, the senior Human Resources officer would be both a key witness and possible advocate for the Employer. Finally, I am satisfied that there would be no unfairness given the Employer’s detailed witness statements, the Applicant’s intimate familiarity with the matters that led to his dismissal, his longevity of service with the Employer and relatively senior position.

[43] Having been satisfied that the requirement in s.596(2)(a) of the FW Act has been met, it is not necessary to consider the remaining conditions in s.596(2)(b) and (c) of the FW Act.

[44] Permission is granted pursuant to s.596(1) of the FW Act for the Employer to be represented by a lawyer.

COMMISSIONER

 1   Brink v TWU PR922612 at paragraph [7]

 2   King v Freshmore (Vic) Pty Ltd S4213 at paragraph [24]

Printed by authority of the Commonwealth Government Printer

<Price code C, PR562467>