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Fair Work Act 2009
s.394—Unfair dismissal
Daniel King
v
Patrick Projects Pty Ltd
(U2014/7097)
COMMISSIONER WILLIAMS PERTH, 20 FEBRUARY 2015
Respondent representation.
[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
[2015] FWC 1221 [Note: An appeal pursuant to s.604 (C2015/1971) was
lodged against this decision - refer to Full Bench decision dated 4 May
2015 [[2015] FWCFB 2679] for result of appeal.]
DECISION
AUSTRALIA FairWork Commission
https://www.fwc.gov.au/documents/decisionssigned/html/2015FWCFB2679.htm
[2015] FWC 1221
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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.
COMMISSIONER
[2015] FWC 1221
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Final written submissions:
Respondent, 18 February 2015
Applicant, 18 February 2015
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Price code A, PR561250
