[2011] FWA 2267

[2011] FWA 2267

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FAIR WORK AUSTRALIA

DECISION

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

Mr Matthew Wesslink
v
Walker Australia Pty Ltd T/as Tenneco
(U2010/15008)

COMMISSIONER HAMPTON

ADELAIDE, 21 APRIL 2011

Unfair dismissal - application by respondent for permission to be represented by lawyer - whether nature of matter and circumstances of parties are such that discretion should be exercised - permission given.

[1] This matter concerns the dismissal of Mr Matthew Wesslink (the applicant) by Walker Australia Pty Ltd T/as Tenneco (the respondent). The applicant has applied for a remedy in relation to an alleged unfair dismissal pursuant to s.394 of the Fair Work Act 2009 (the Act).

[2] Without outlining the full scope of the issues to be determined in the matter, the applicant was dismissed on the grounds of alleged serious misconduct said to arise from the “sexual harassment” of a more senior employee of the respondent. The applicant was also at the time under a modified work regime and in receipt of payments pursuant to the Workers Rehabilitation and Compensation Act 1986 (SA) (the WRC Act).

[3] The applicant denies the alleged harassment but accepts that elements of his conduct may have caused embarrassment. In addition, the applicant’s case is based in part on the proposition that his conduct has been treated more seriously due to the fact that he was subject to benefits under the WRC Act at the time.

[4] During the course of preliminary proceedings, I heard and dealt with an application made by the respondent pursuant to s.596 of the Act for permission to be represented. That application was vigorously opposed by Mr Hardie, who appeared for the applicant.

[5] On 11 April 2011, after hearing the parties, I determined that permission would be given. In so doing, I indicated that reasons for that decision would be provided as part of any subsequent reasons issued in relation to the substantive application. Mr Hardie subsequently requested that the reasons be provided separately and as the substantive application has now been adjourned for a short period, I will accommodate that request.

[6] 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

[7] Subsections 596(3) and (4) are not relevant to the respondent in this case, although I note that Mr Hardie does not need to seek permission to represent the applicant as he is an employee of a Registered Organisation (ss.596(4)(b)(i)).

[8] I also note that the permission that was being sought is such that counsel, with Ms Raimondo of Kelly & Co Lawyers instructing, seeks to appear.

[9] Mr Swan, of Counsel, who appeared for the respondent in the immediate application contended that the circumstances of this matter were such that permission should be given for representation. In particular, he relied upon the fact that Mr Hardie was a legal practitioner as confirmed by the Law Society of SA and that the human resources personnel from the company were not legally qualified and were in any event witnesses whose credit would be contested.

[10] Mr Swan also noted that one of the witnesses to be called was the employee who had made the allegations at the centre of the dismissal and contended that it would be appropriate for Counsel to be involved given the particular obligations owed to an employee in these circumstances. Mr Swan also argued that there were complex issues arising in this case that would be more efficiently dealt with where the respondent was represented.

[11] Mr Hardie for the applicant denied that he was a legal practitioner with a full practising certificate 1 and contended that any assessment of fairness in this case should take into account that he was a relatively inexperienced legal officer with few support resources at his disposal. He also argued that the respondent was a large self-insured corporation2 with human resource expertise that could and should represent it in this matter. In that context, Mr Hardie contended that the respondent had been on notice that he would object to permission being granted and in effect, that it should therefore be in a position to represent itself in the upcoming hearing.

[12] Mr Hardie also claimed that the conduct of the respondent’s lawyer, Ms Raimondo, was contumelious and had itself caused delay and inefficiency. This was based upon the late filing of material on behalf of the respondent and a refusal to provide unfettered access to the applicant’s employee file when sought in the lead up to the scheduled hearing. Without detailing all of the related contentions advance by Mr Hardie he argued in effect that in all of the circumstances, it was not appropriate to grant permission and such would be inconsistent with the purpose as explained by the relevant Minister when introducing the Bill leading to the Act. 3

[13] The scheme of the Act is evident from the objects in s.381 and the terms of s.596 itself. That is, the Act encourages both efficient and informal processes where possible to deal with unfair dismissal matters subject to the overriding objective of fairness. Permission for representation is specifically required 4 and is only to be given where the considerations established in s.596(2) of the Act mean that such discretion should be exercised. These considerations involve as assessment of efficiency and/or fairness and point to both the circumstances of the matter and the parties themselves.

[14] In dealing with this matter, I accept Mr Hardie’s contention that he does not hold an unrestricted practising certificate to practice as a lawyer 5 and that he does not have the resources that a large legal firm has at its disposal. He is however a well qualified legal officer who has legal qualifications and some experience in this and related jurisdictions. Indeed, despite the relatively short period of his employment with the AMWU, Mr Hardie is a regular feature of many matters with the jurisdiction of Fair Work Australia including in unfair dismissal applications.

[15] In terms of the alleged conduct of Ms Raimondo, it is the case that the material to be filed by the respondent was filed later than required by the directions issued by Fair Work Australia and that such did lead to some prejudice that ultimately resulted in a short adjournment of the matter. However, an explanation for much of that delay was provided during the preliminary hearing and there is no foundation for any suggestion that this conduct was deliberate or contemptuous. Although the consequent delay is a factor that may point towards inefficiency, it would be a large leap to assume that the hearing and ultimate determination of this particular case by Fair Work Australia would be more efficient without the representation sought.

[16] In my view, the circumstances of this matter are such that each of the considerations called-up by s.596(2) are consistent with permission being granted. In reaching that view, I have had regard to the competing considerations, however the following factors in particular together outweigh the statutory presumption against representation:

The respondent does have human resource specialists that could in many circumstances represent the company, however all of those who have been cited as potential advocates are witnesses in this case and their credit is an important consideration which is likely to be tested by Mr Hardie on behalf of the applicant;

There are multiple witnesses including the employee who has made the allegation against the applicant and particular considerations apply when calling a witness in that particular context;

The matter has some complexity given the claimed interaction with the WRC Act as to the merit of the application and the likely interaction with that Act should a remedy be considered in this matter; and

The applicant is represented by a competent legally qualified officer from the AMWU.

[17] As a result, the considerations of efficiency in ultimately determining the matter, having regard to the complexity of the case (ss.596(2)(a)), and fairness in terms of effective representation and the comparative level of representation (ss.596(2)(b) and (c)), mean that it was appropriate to permit the respondent to be represented in this matter.

COMMISSIONER

Appearances:

T. Hardie of the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union known as the Australian Manufacturing Workers' Union (AMWU) for the applicant.

N. Swan of Counsel with C. Raimondo of Kelly & Co Lawyers for the respondent.

Hearing details:

2011
Adelaide
11 April.

1 Mr Hardie contends that the information supplied by the Law Society (on its website) in relation to his status as a legal practitioner is incorrect in that it does not distinguish circumstances where the practitioner only has a limited certificate.

2 Self-insured for the purposes of the WRC Act.

3 Explanatory Memorandum to the Fair Work Bill 2008 at para 2291 as discussed in various decision including O’Grady v Royal Flying Doctor Service of Australia (South Eastern Section) [2010] FWA 1143, 17 February 2010, per Leary DP.

4 Except where s.596(3) and (4) applies.

5 I have dealt with this matter on the assumption that Mr Hardie has a restricted practicing certificate and that he is presently unable to practise as a lawyer without supervision.

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