Fair Work Act 2009

Section 394 - Application for unfair dismissal remedy

[1] On 26 April 2018 I issued directions requiring the Applicant and the Respondent to provide written submissions to the Fair Work Commission (the Commission) should either seek permission to be represented by a legal practitioner or paid agent at the hearing of this matter on 5 and 6 July 2018 (with 9 July reserved).

[2] The Commission has received written submissions from both the Applicant and the Respondent seeking such permission under section 596 of the Fair Work Act 2009 (FW Act). At a directions hearing on 15 June 2018 both the Applicant and the Respondent made oral submissions in support of their written submissions.

[3] Neither the Applicant nor the Respondent oppose permission being granted to the other side.

[4] I have considered these submissions and the relevant provisions of the FW Act.

[5] The hearing on 5, 6 and (potentially) 9 July 2018 concerns whether Mr Andrawos's dismissal on 14 February 2018 was harsh, unjust or unreasonable, and if so, the appropriate remedy. No threshold or jurisdictional issues have arisen, to date. The matter will be determined by formal hearing in open court (subject to any contrary directions) over two and possibly three days. Based on the voluminous material filed in accordance with my directions of 26 April 2018 it would appear that substantial evidence will be called from both the Applicant and nine witnesses for the Respondent including three persons not employed by the Respondent. The evidence appears to relate to matters of some complexity, including financial matters and financial records. Cross examination of witnesses may be required and, in some instances, be lengthy. Issues of credit may need to be determined.

[6] The hearing of the matter is also attended to by an added degree of complexity concerning orders or directions that may need to be given to restrict the publication of financial records held by the company concerning its affairs or affairs of its clients or identification of such persons, orders excluding the presence of non-parties in the hearing room and orders limiting access by non-parties to the transcript of proceedings or parts thereof. The Commission currently has before it an application by the Respondent dealing with such matters.

[7] I accept that the Applicant has no experience in presenting a case of this nature, and that being both witness and interrogator of evidence would be a significant burden and potentially unfair to him. Having regard to complexity, the efficient conduct of cross examination and fairness I consider that permission should be granted for Mr Andrawos to be legally represented at the hearing of this matter.

[8] The employer is a mid-sized business said to employ in excess of 250 employees. Whilst it has a human resource capability, I accept that cross examination of witnesses in a lengthy hearing and submissions on issues of credit and dealing with matters relating to the confidentiality of evidence are likely to be more efficiently conducted by a legal representative. It is also relevant that the human resources officer who would otherwise be required to be advocate for the Respondent at the hearing is a witness who will be giving evidence. Avoiding such a circumstance is desirable. In the context of this case, it would also be unfair to deny the employer external legal representation where it is to be provided to the employee. In all the circumstances, I consider that permission should be granted to the employer to be legally represented.

[9] I grant permission under section 596 of the FW Act.

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