Fair Work Act 2009_

s.394 - Unfair dismissal

Application for relief from unfair dismissal - permission to be represented by lawyers and paid agent - refused.

[1] This decision deals with a dispute over whether permission should be granted for representation of a party involved in Mr Zivkovic's unfair dismissal application. That application has been listed for arbitration in Adelaide in September 2016. Mr Zivkovic has confirmed that he is representing himself in the matter. The respondent, Auscold Logistics Pty Ltd (Auscold), seeks to be represented by Ms Park, of Employsure.

[2] In directions issued on 25 July 2016 I stated:

"[3] Ms Park, of Employsure Pty Ltd, has confirmed that a grant of permission for representation of Auscold Logistics by a lawyer or paid agent is being sought. Employsure is to provide to the Commission and to Mr Zivkovic, by close of business 1 August 2016, a brief submission detailing the basis upon which it seeks permission. If Mr Zivkovic opposes that request, he is to provide to the Commission, and to Ms Park, of Employsure, by 8 August 2016, a brief submission detailing the basis for his position. In that event, and in that event only, a decision on the representation issue will be provided to the parties as soon as possible after 8 August 2016. In each case any submissions should address the provisions of s.596(2) of the Fair Work Act 2009. A copy of that section is attached."

[3] The parties have both provided written submissions in support of their respective positions. I have determined a position on the representation issue on the basis of those written submissions.

[4] Section 596(2) of the Fair Work Act 2009 (the FW Act) states:

(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.

Note: Circumstances in which the FWC 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."

[5] Ms Park asserts that permission should be granted for the following reasons:

The matter pertains the main issue of serious misconduct, which involves a more complex legal test that must be adequately addressed. It is our submission that if the Respondent is able to be represented at the hearing, it would enable the matter to be dealt with in a far more effective manner as the legalities pertaining to serious misconduct in the matter in question would be more appropriately addressed by an agent with extensive industrial experience.

The Respondent has minimal working knowledge of the legalities relevant to this matter. This is the first instance where the Respondent has been faced with an employment law claim. As such, we submit that the Respondent will not be in a position to represent itself effectively.

It is clear from case law that granting permission to appear is not a mere procedural decision, but one that fundamentally changes the dynamic with which proceedings are conducted. It is our submission that if the Respondent is granted leave, the nature of proceedings will be far more efficient and conducive to the Commission making a determination in the matter.

As a practical consideration, we are mindful that Mr Zivkovic is not represented. We therefore give Your Honour an undertaking to engage in the conference in a manner that is consistent with an Applicant being unrepresented, and not to make matters overly complex or legally technical where practicable.

In view of the foregoing reasons, we respectfully request that Your Honour exercise his discretion under the Act to allow the Respondent to be represented at the arbitration hearing on 5, 6 and 7 September 2016." (footnotes omitted)

[6] Mr Zivkovic asserts that representation of Auscold by a party would increase the complexity of the otherwise straightforward matter and that Auscold is able to effectively represent itself. Mr Zivkovic asserts that s.596(2)(c) should be construed such that a grant of permission given to Ms Park would be prejudicial to his prospects of a fair and reasonable hearing.

[7] I have considered the extent to which a grant of representation should be issued on the basis that it would enable the matter to be dealt with more efficiently because of its complexity. On the information before me it appears that a great deal of significance in this matter will relate to the actual factual matrix. I am not satisfied that Ms Park has established to me that the matter raises significant issues of complexity so that her involvement would enable it to be dealt with more efficiently.

[8] In terms of s.596(2)(b), I have noted that Auscold has advised in its response to the application that it had 94 employees at the time of the termination of Mr Zivkovic's employment. The application and the response to the application indicate that the evidence of Mr Zivkovic and that of the Auscold General Manager, Mr Mogey will be particularly significant in this matter. I have noted that it is often desirable and appropriate to ensure that the two key protagonists in a matter such as this are, to some extent separated by the involvement of a third party representative. However, Ms Park's submission does not provide me with information about who would represent Auscold if permission is refused. Consequently, on the material before me I am not satisfied that the requirements of s.596(2)(b) are established in this instance. On the information before me, Auscold is a reasonably sized employer and I am not satisfied that Ms Park's has established that Auscold is unable to represent itself effectively.

[9] In terms of s.596(2)(c), Mr Zivkovic's submission misconstrues this provision. This provision provides for a grant of permission in circumstances where the other party has access to either a grant of permission or to internal expertise which relies on either legal training or expertise in the matters covered by the FW Act. It does not provide a basis for rejecting the Auscold permission request simply because Mr Zivkovic is himself, not represented. Consequently, I do not consider that this provision of the FW Act becomes relevant to the question of whether permission should be granted to Ms Park's.

[10] In conclusion, for the reasons I have set out in this decision, I am not prepared to grant permission for representation of Auscold by a lawyer or paid agent pursuant to s.596(2) of the FW Act.

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