DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Jerome Monteiro
v
Valco Group Australia Pty Ltd
(U2017/13650)

Application for an unfair dismissal remedy – permission for representation by lawyers and paid agents.

[1] Valco Group Australia Pty Ltd (Respondent) has made an application for permission to be represented by a lawyer or paid agent pursuant to s.596(2)(a) and (b) of the Fair Work Act 2009 (FW Act) in an unfair dismissal application made by Mr Jerome Monteiro (Applicant) before the Commission.

[2] On Monday 5 March 2018 I issued directions for parties to file any further application and objections to permission to be represented in the jurisdictional hearing in relation to the unfair dismissal application by 6 and 7 March 2018 respectively. The Applicant objects to permission being granted to the Respondent.

[3] The Respondent says that determining if the Applicant was earning more than the high income threshold will involve some complexity in that it will need to deal with conflicting decisions of the Fair Work Commission (Commission), the resolution of contractual and financial documents and the relevance of the parties’ conduct during earlier independent contracting arrangements. It says that the grant of permission will enable the matter to be dealt with more efficiently given this complexity.

[4] The Respondent also submits that the Respondent is unable to represent itself effectively as the Applicant was the only management employee of the French based company in Australia; the Respondent is a wholly owned subsidiary of that company; and all management are based in France. It submits that, whilst the management representatives in France do speak English as a second language, they have limited knowledge of the Australian legal system, including the Commission, and that issues of comprehension may therefore arise. For this reason it says it would unfair not to allow it to be represented.

[5] The Applicant says that the application does not raise any matter of complexity not already addressed in the material filed by the parties. Further, he says that the Respondent has a director resident in Western Australia and two local employees, any of whom could represent it in the Commission proceedings. Further, he says that one of the employees (Mr Ray Farrier) is authorised to represent the Respondent in the Commission. The Applicant says that he is prepared to have the hearing adjourned so that the Respondent can be represented by an employee.

[6] The Applicant says he is also French speaking with English as a second language.

[7] The Applicant says that to grant permission would be contrary to the provisions of the FW Act that a matter be dealt with in a “quick, informal” way that “avoids unnecessary technicalities”. He says that to grant permission will result in an unfair hearing, contrary to the Commission practice note.

[8] Following receipt of the Applicant’s objection submissions the Respondent advised that the Australian resident director of the Respondent (Mr Geoffrey James) is a non-executive director who has no participation in operational matters of the Respondent. It also said that one of the employees named by the Applicant no longer works for the Respondent and Mr Farrier is not an employee or contractor of the Respondent.

[9] I have decided that permission should be granted to the Respondent to be represented by a lawyer or paid agent.

[10] I am satisfied that there is some complexity in relation to the allocation of monies paid to the Applicant and whether any or what proportion of the car allowance should be treated as earnings. I accept that there are a variety of decisions of the Commission on this matter and that the resolution of the matter will turn on the characterisation of the allowance.  Where there is a lack of clarity in the employment arrangements as to the purpose of the car allowance this complexity leads to the conclusion that the matter would be dealt with more efficiently of permission was granted.

[11] I am also satisfied that it would be unfair not to allow the Respondent to be represented. In circumstances where it has a minimal presence in Australia and, even on the Applicant’s reckoning and taking into account the update from the Respondent, it is not apparent that there is anyone from the Respondent capable of representing it in the Commission.

[12] The Commission must be satisfied that at least one of the conditions in s.596(2) are met before considering if the discretion should be exercised to grant permission.

[13] I accept that the Applicant will not be represented. Whilst it is not necessary to consider if it would create unfairness between the parties to grant permission I do note that the Applicant, by the quality of his material filed in the Commission, clearly has an excellent grasp of the matter to be determined by the Commission, the requirements in relation to material placed before the Commission and Commission processes. I do not consider, in these set of rather unique circumstances, that it will be unfair to the Applicant should permission be granted to the Respondent. It will never be the case that there will be a true balance in skills, knowledge and/or ability in representation – however that representation manifests itself – in matters before the Commission, although these are considerations under s.596(2) in deciding if permission should (as opposed to should not) be considered.

[14] I have considered the specific provisions of the FW Act that go to how the Commission should deal with matters and, in particular, that parties should generally represent themselves. I have also taken into account the Fair Hearing Practice Note. Taking these into account I am satisfied that permission should be granted. This does not mean that the proceedings before the Commission will involve unnecessary technicalities or that it will be slowed down or be needlessly formal.

[15] Permission is therefore granted to the Respondent to be represented by a lawyer or paid agent.

COMMISSIONER

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