[1] This matter arises from an application for unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (the FW Act) made by Mr Nathan Rollason (the applicant) in respect to his dismissal by Austar Coal Mine Pty Limited (the respondent). The applicant was dismissed for alleged sexual harassment.

[2] The applicant contends his dismissal was in part related to an application made to Fair Work Australia concerning a workplace right and his decision to pursue the matter before a court of competent jurisdiction.

[3] This decision deals with an application by the Construction, Forestry, Mining and Energy Union - Mining and Energy Division (the Union) on behalf of the applicant objecting to the respondent being represented in arbitration proceedings by a lawyer.

Section 596 application: Representation by a lawyer

[4] Written submissions concerning the Union's objection were filed by the parties and the matter was subject to a hearing on 8 June 2010.

[5] Section 596 of the FW Act relevantly states:

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.

2) 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:

ii) an association of employers that is not registered under the Fair Work (Registered Organisations) Act 2009 ; or

(iv) a bargaining representative; that is representing the person; or

[6] Shortly stated, it was the respondent's submission that it did not have specialist human resources or other staff equipped with legal, industrial relations or advocacy skills to effectively represent itself in the proceedings.

[7] The respondent sought to rely upon the statement of Ms Kim Fullbrook, Human Resources Coordinator.1 Ms Fullbrook was currently on maternity leave and the respondent submitted that in any event she has no advocacy training or experience before courts or tribunals. Similarly, Ms Tracey Benn, Ms Fullbrook's assistant, has no advocacy training or experience before any courts or tribunals.

[8] Ms Fullbrook was involved in the investigation and she also advised senior management in relation to both the investigation and the ultimate decision to dismiss the applicant. Accordingly, it was the respondent's position she could not appear as both an advocate and a witness.

[9] The respondent contended the applicant was dismissed on the grounds of alleged serious misconduct, that conduct being sexual harassment. Accordingly, the respondent bears the onus of proving the allegation to the requisite standard of proof.

[10] The respondent submitted there was a significant factual dispute to be resolved and the contest of key factual issues would require cross examination.

[11] The respondent engaged Blake Dawson to represent the respondent the day after the applicant was terminated. Blake Dawson appeared for the respondent in conciliation conferences and is closely aware of the facts in the matter.

[12] In the substantive proceedings, the applicant will be represented by Mr Keenon Endacott, Industrial Research Officer, based at the Union's regional office in Cessnock. Mr Endacott is an experienced advocate in unfair dismissals and other matters before the Tribunal.

[13] The Union objects to the respondent being represented by a lawyer and contends that neither the complexity nor nature of this matter requires the respondent to be legally represented.

[14] It was the Union's submission that there was no serious factual dispute to be resolved. The factual matrix is narrow. The applicant was dismissed for sexual harassment following an investigation conducted "at exceptional speed".

[15] Fair Work Australia is intended to operate "in a non adversarial manner" where "persons would generally represent themselves".

[16] The placing of evidence before Fair Work Australia and cross examination of witnesses is not a difficult task nor does it require legal representation to be effectively performed in unfair dismissal proceedings. Legal representation does not necessarily lead to proceedings being dealt with in a speedy and efficient manner.

[17] The respondent is owned by Yancoal Australia Limited, a subsidiary of Yanzhou Coal Mining Company Limited, People's Republic of China and employs some 50,000 persons worldwide. It is part of a large mining company with a dedicated human resources team. Accordingly, it would therefore be unfair to permit the respondent to be legally represented when the applicant will be represented by a lay advocate, albeit an experienced advocate who is not legally qualified.

[18] I have carefully considered all the submissions and written material put by the parties in this matter and I am satisfied that the relevant factual matrix is sufficiently complex that legal representation would assist in its effective and efficient resolution.

Whether the applicant has the ability to be self represented

[19] I am aware that Mr Endacott is not legally qualified. However, he is an advocate with some 20 years experience across a wide range of industrial issues, including unfair dismissal proceedings within the coal industry.

[20] The respondent was represented by Blake Dawson during the relevant conciliation conferences and should not be prevented from utilising those legal resources previously retained for the purposes of defending this matter. Permission is granted for the respondent to be represented by a lawyer in the hearing of this application. It follows therefore that the applicant would be granted permission to be represented by a lawyer in the event such an application was made.

K Endacott, Construction, Forestry, Mining and Energy Union - Mining and Energy Division for Mr N Rollason

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