Fair Work Act 2009_

s.394 - Unfair dismissal

[1] Patrick Projects Pty Ltd (the respondent) has requested pursuant to section 596 of the Fair Work Act 2009 (the Act) that it be granted permission to be represented by a lawyer in the above matter.

[2] Section 596(2) of the Act provides that the Commission can only exercise the discretion to give permission for a person to be represented by a lawyer or paid agent where:

• it would enable the matter to be dealt with more efficiently, taking into account the complexity of the matter or

• 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

• 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.

[3] Both parties have provided written submissions to the Commission on this issue. Mr Daniel King (Mr King or the applicant) opposes the respondent being represented by a lawyer and argues that the respondent's business manager is capable of representing the respondent in the hearing.

[4] Relevantly the applicant in his evidence and materials refers to incidents and actions over a lengthy period of time including some years before his dismissal. Further the applicant refers to and seeks to rely upon his view of prior applications he has made to this Commission, being an anti-bullying application and a general protections application, plus other application involving Consent Orders and Security of Costs applications and refers to how these were responded to by the employer at the time and also how these applications were dealt with by the Commission.

[5] In addition the applicant in his submissions is seeking orders that on its face appear to be beyond the Commission's jurisdiction including orders with regard to five other persons who are not parties to this application. These factors do create some level of complexity in this matter.

[6] In my view a lawyer representing the respondent will be able to assist the Commission in determining what elements of the applicant's evidence is relevant to this application and assist the Commission when deciding what consideration, if any, should be had for prior Commission proceedings and whether the orders sought by Mr King are within jurisdiction.

[7] Further a lawyer representing the respondent is more likely to be able to limit its evidence and submissions in response to Mr King's application to relevant matters that are within jurisdiction. For these reasons I am satisfied that the respondent being represented by a lawyer will enable this matter to be dealt with more efficiently.

[8] I also note in this instance that the applicant has only very recently advised that he is no longer represented by the paid agent whom has been representing him throughout the proceedings to date.

[9] Notwithstanding Mr King's view that one of the respondent's managers should represent the respondent there is nothing before the Commission as to that individual's experience in advocacy or representation in courts or tribunals nor that of any other member of the respondent's staff that demonstrates there are persons within the respondent's business who could effectively represent them. The fact that an individual is a senior manager in a business does not of itself mean that they will be able to effectively represent their employer in proceeding such as these. There is no evidence the respondent is able to represent themselves effectively so consequently I am satisfied it would be unfair not to allow the respondent to be represented by a lawyer.

[10] Section 596(2)(c) of the Act considers potential unfairness to the person seeking to be represented (in this case the respondent) if they were not allowed to be represented taking into account fairness between them and other persons involved in the matter (in this case the applicant). This provision is not concerned with potential unfairness to other persons (in this case the applicant) if the person seeking to be represented (in this case the respondent) is granted permission to be represented. This provision would be relevant if perhaps the applicant was represented by a union or a skilled but unpaid advocate. In such a case to not permit the respondent to be represented may be unfair. The applicant is self represented so section 596(2)(c) of the Act is not relevant in this instance.

[11] In conclusion I have considered the provisions of section 596(2) of the Act in the context of this particular application and the circumstances of both parties and have decided to grant permission for the respondent to be represented by a lawyer or a paid agent.

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