s.394 - Unfair dismissal

Application for an unfair dismissal remedy - objection to application for legal representation - leave granted.

[1] This decision relates to an application filed by Ms Pitman pursuant to section 394 of the Fair Work Act 2009 (the Act). Ms Pitman was dismissed in her employment with UnitingCare Queensland Limited (the Respondent) and alleges that her dismissal was harsh, unjust or unreasonable.

[2] The Respondent dismissed Ms Pitman because it was satisfied that she had repeatedly stolen items from patients in her duties as a nurse at the St Andrews War Memorial Hospital. The Respondent was satisfied that the items stolen included rings, wallets, and cash ranging in value from $20 to $400. Ms Pitman denies that she ever stole.

[3] The matter is listed for hearing before me on 19 February 2026. The Respondent has made an application to be represented pursuant to s.596 of the Act by Ms Anna Crawford of Counsel.

[4] Ms Pitman is represented by the Queensland Nurses and Midwives' Union (QNMU) and opposes leave being granted to the Respondent to be represented.

[5] This decision only relates to the matter of legal representation.

[6] The relevant provisions of the Act are set out in s.596(1) and (2):

"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 the FWC (including by making an application or submission to the FWC on behalf of the person) by a lawyer or paid agent only with the permission of the FWC.

(2) The FWC may grant permission for a person to be represented by a lawyer or paid agent in a matter before the FWC 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.

• [7] The Fair Work Commission (the Commission) only needs to find that one of the sub-sections above is satisfied to exercise its discretion to grant permission for a party to be represented. The satisfaction of one of these conditions is not determinative but enlivens the Commission's discretion as to whether permission to be represented should be granted.[1]

[8] The Respondent seeks leave to be represented pursuant to s.596(2)(a), (b) and (c) of the Act.

[9] The Respondent submitted that it took the allegations of stealing very seriously and the Respondent's conduct in respect of its investigation will be paramount in the Commission's determination of the matter. The investigation process undertaken by the Respondent relied upon a significant amount of evidence, the analysis of such will be necessarily complex and remains in dispute between the parties.

[10] If leave is granted, the nominated Counsel possesses specialised advocacy skills which will enable the presentation of the complex legal issues in this matter to be put in a concise manner which will assist the Commission.

[11] It was submitted that granting leave for the Respondent to be legally represented will benefit the Commission and allow the matter to be dealt with more efficiently. Having an experienced advocate in cross-examination will assist the Commission to evaluate conflicting evidence.

[12] Ms Andrea Farrell, Legal Counsel - Employee Relations made a statement in this matter. Ms Farrell is one of two employees of the Respondent in the legal stream of the People and Culture team. Ms Farrell has been admitted as a lawyer for seven years and has worked in employment and industrial relations for five years.

[13] Ms Farrell manages applications made by employees and former employees of the Respondent in the Commission and other tribunals but states that she has only appeared before the Commission in one substantive hearing involving a dispute. For substantive hearings, the matters are typically briefed as Ms Farrell considers that she does not have specialised advocacy skills. She has not cross-examined witnesses.

• [14] It was submitted that without engaging suitably specialised legal representation, the Respondent cannot effectively represent itself in a manner which is "powerful in effect".[2] For this reason, the Respondent submitted that it would not be able to represent itself effectively.

[15] The Respondent notes that Ms Pitman is represented by an Industrial Officer of the QNMU who regularly appears in industrial tribunals and is very experienced in matters of this nature. It was submitted that it would not be unfair to allow the Respondent to be represented taking into account fairness between the parties.

[16] Ms Pitman submitted that none of the criteria in s.596(2) has been satisfied and leave should not be granted for the Respondent to be represented.

[17] Mr James Reith, Servicing Industrial Officer of the QNMU made a statement in this matter. He stated that in respect of representation of individual members of the union, they are either Servicing Officer/Servicing Organiser, or they are a Servicing Industrial Officer. A Servicing Industrial Officer usually has industrial relations experience and/or prior legal experience and will generally represent members before industrial tribunals.

[18] Mr Reith is not employed as a lawyer and does not hold himself out as being a legal practitioner. He was, however, admitted as a lawyer in the Supreme Court of Queensland on 12 October 2018. He worked as a lawyer for approximately one year between 2019-2020, and as a Prosecutor for the Commonwealth Department of Public Prosecutions for approximately one year between 2020-2021.

[19] Mr Reith frequently appears at tribunal conciliation conferences and procedural hearings. He has not cross-examined a witness in a court or tribunal setting.

[20] In respect of s.596(2)(a), Ms Pitman submitted that the matter is not especially complex, and if the Respondent can demonstrate that there was a single act of theft, the application is likely to be dismissed.

[21] Ms Pitman submitted that to date the Respondent has not provided substantial information to her in respect of its investigation. It is noted that pursuant to my Directions issued on 16 December 2025, the Respondent's evidence is not due to be filed until 4:00pm today.

[22] In respect of s.596(2)(b), Ms Pitman noted that the Respondent is a large employer who engages a team of internal lawyers and industrial relations professionals. Ms Pitman submitted that Ms Farrell is well-placed to appear for the Respondent.

[23] In respect of s.596(2)(c), Ms Pitman submitted that if she is represented by Mr Reith, and the Respondent by Ms Farrell, it can be said that there is a significant degree of fairness between the representatives. Their experience, on balance, is not dissimilar.

[24] If leave is refused, each party will be represented by an advocate competent to properly advance each party's case, albeit both new to cross-examination. If leave is granted, then the scales will be tipped by an expert barrister with advanced cross-examination skills, which will create significant unfairness between the parties.

[25] The issue of determining whether Ms Pitman engaged in theft while at work is a very serious and important matter. The determination will be based on the balance of probabilities and involves 15 allegations.

[26] On the information presently before the Commission, the evidence upon which the Respondent made its determination is circumstantial. In one instance where a patient was hospitalised for approximately six weeks and $25 was reported stolen on the fifth last day of the patient's hospitalisation, Ms Pitman's evidence is that she was not rostered in the same area. There is going to be extensive, forensic and critical cross-examination on particularly minute detail as far back as January 2025. The cross-examination will be inherently complex.

[27] I am satisfied that these are complex matters and granting permission for the Respondent to be represented at the hearing will enable the matter to be dealt with more efficiently.

[28] For the above reasons, I choose to exercise my discretion to grant permission for the Respondent to be represented at the hearing pursuant to s.596(2)(a).

[29] Having determined the matter in respect of s.596(2)(a), it is not necessary for the matter to be determined in respect of s.596(2)(b) or (c). Had it been necessary to do so, I would have granted permission for the Respondent to be represented because it would be unfair not to allow the Respondent to be represented because I am satisfied that the Respondent is unable to represent itself effectively. Ms Farrell's inexperience in cross-examination would, in my view, be evident when dealing with the evidentiary burden of demonstrating that theft actually occurred, combined with Ms Pitman's right to privilege against self-incrimination.

[30] Had it been necessary for the mater to be determined in respect of s.596(2)(c), I would not have granted leave for the Respondent to be represented on account of Mr Reith's limited experience of cross-examination.

[31] For the reasons set out above, I exercise my discretion under s.596(2)(a) of the Act to grant permission for the Respondent to be legally represented. The Commission will, of course, afford to Ms Pitman all necessary and appropriate assistance at the hearing to ensure procedural fairness to her, noting she is represented by a legally qualified industrial advocate who presently does not hold a practising certificate. There will be no disadvantage to Ms Pitman, and if at any time Ms Pitman has a question relevant to issues or processes before the Commission, this will

[1] CEPU & Ors v Northern SEQ [2016] FWC 4736 at [13]- [14].

[2] Community and Public Sector Union v UGL Resources Pty Limited (Project Aurora) [2012] FWA 296.

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