Note: An appeal pursuant to s.604 (C2012/714) was lodged against this decision - refer to Full Bench decision dated 15 August 2012 [[2012] FWAFB 6832] for result of appeal.
[2012] FWA 5219 |
|
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Drew Hamilton
v
Carter Holt Harvey Wood Products Australia Pty Ltd
(U2012/6283)
DEPUTY PRESIDENT BARTEL |
ADELAIDE, 19 JUNE 2012 |
Termination of employment - representation by lawyer.
[1] Drew Hamilton (the applicant) has made application pursuant to s.394 of the Fair Work Act 2009 (the Act) seeking an unfair dismissal remedy in relation to his dismissal from Carter Holt Harvey Woodproducts Australia Pty Ltd (the respondent or the employer) on 9 March 2012. This decision deals with an application by the respondent for permission to be represented by a lawyer in accordance with s.596 of the Act. The applicant, represented by Mr Hardie, Industrial Officer with the Australian Manufacturing Workers’ Union, opposes permission being granted.
[2] The parties each provided written submissions, which were supplemented by oral submissions at a directions conference convened on 15 June 2012. The respondent was represented by Mr Tom Martin of counsel. At the conclusion of the directions conference I declined the application for representation. Mr Martin requested written reasons which I now provide.
[3] Section 596 of the Act is in the following terms:
“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
(c) is a bargaining representative.”
[4] Section 596 involves an exercise of discretion by Fair Work Australia (FWA) but the discretion to grant permission to be represented by lawyer or paid agent can only be exercised if any or all of the circumstances in ss.596(2)(a), (b) or (c) are satisfied.
[5] It is relevant to note that the respondent is a large national employer. As at the date of the directions conference it employed a “junior” in-house lawyer but was shortly to appoint a second in-house lawyer. 1
[6] Two main grounds were advanced by Mr Martin in support of leave being granted. It was submitted that the respondent’s in-house lawyers have no experience in arbitrating unfair dismissal matters before FWA, while the applicant is represented by an experienced industrial advocate. As such, fairness between the parties will be advanced if the respondent is represented by experienced counsel. Secondly, Mr Martin contended that the case involves a degree of complexity in terms of disputed facts, issues of credibility and the need for forensic cross-examination of witnesses. If the respondent is represented by counsel it will assist with the efficiency of the proceedings.
[7] Mr Hardie in response described the case as one where the conduct that led to the dismissal was admitted and the applicant relied upon the alleged (dis)proportionality of the dismissal and the respondent’s treatment of other employees who had committed similar misconduct. He submitted that it was incorrect to describe him as ‘experienced’ and that granting permission for the respondent to be represented by experienced counsel would lead to unfairness for the applicant.
Consideration
[8] FWA is required to have regard to the complexity of the matter and whether representation by a lawyer or paid agent would enable the matter to be dealt with more efficiently. The complexity of the matter is the subject of disagreement between the parties, but assuming the matter does involve the issues outlined by Mr Martin, I am not persuaded that this makes the matter sufficiently complex to warrant outside legal representation in the present circumstances. On Mr Martin’s submission, the matter could not be characterized as straight forward, but neither does it involve the determination of complex jurisdictional or technical matters. In any event, representation by in-house lawyers, experienced or otherwise will enable the matter to be dealt with efficiently, especially given the size and resources available to the respondent.
[9] The access to in-house lawyers and the characteristics of the respondent are also relevant to the consideration under s.596(2)(b) of the Act in relation to the ability of the respondent to represent itself effectively. Access to personnel who have, at the least, a rudimentary knowledge of court processes and rules of evidence and who are not themselves witnesses in the case are matters that bear on the effective representation of a party. I am satisfied that the respondent will be able to represent itself effectively absent external legal representation.
[10] I do not consider that fairness between the parties should be judged in this matter by examining the relative years and nature of the experience of Mr Hardie and Mr Martin. I am satisfied that if representation by external counsel is denied, it will not lead to a situation of unfairness for the respondent in view of its access to in-house lawyers and human resources personnel.
[11] For the foregoing reasons the respondent’s application for permission to be represented by a lawyer is dismissed.
DEPUTY PRESIDENT
1 Email correspondence from Mr Martin dated 13 June 2012.
Printed by authority of the Commonwealth Government Printer
<Price code A, PR525345>