Unfair dismissal cases; the procedure

Today I came across a Fair Work Commission decision in an unfair dismissal case which dealt with both the form in which the proceedings were to be determines and also the issue of legal representation. Both issues are matters upon which I have published published comments which are critical of the Fair Work Commission. The issue of making a “striking impression” is of particular interest.

Here is an extract from the decision. The issue of a “striking impression” is of particular interest.

“FORM OF PROCEEDINGS

[3] Prior to the commencement of proceedings I indicated to the parties my views about the form in which the proceedings should take (s.399) and suggested to them that I considered it appropriate for the matter to proceed by way of a hearing since there were factual matters requiring determination in an environment in which there was some significant contest between the parties. No person objected to this approach and so the matter proceeded by way of a hearing.

[4] For the reasons set out below, I have found that Mr Licastro was not unfairly dismissed and accordingly his application for unfair dismissal remedy must itself be dismissed.

PERMISSION FOR REPRESENTATION BY A LAWYER

[5] On 24 August 2018 Patrick Robinson, the Principal of his firm, advised the Commission that he sought to be legally represented in order for there to be a dispassionate presentation on behalf of the Respondent to the Commission. Mr Robinson also disclosed a concern on his part that it may be difficult for him to appropriately proceed without legal representation. That application was objected to by the Applicant, Mr Licastro who is professionally a lawyer, but would be unrepresented in these proceedings.

[6] The Respondent’s application is taken to be a request for permission to be granted pursuant to s.596(2)(b) of the Act, which goes to the unfairness that would arise because the Respondent is unable to represent itself effectively. The Applicant objected to permission for legal representation to be granted, particularly for the reason that it would not enable the matter to be dealt with more efficiently and that it would not be unfair to the Respondent to be required to represent itself since its principal Mr Robinson is himself a solicitor.

[7] I had regard not only to the submissions that each party has made about the question of representation, but also to the various submissions, witness statements and documents filed in these proceedings, including in the initial jurisdictional matter and earlier and incomplete proceedings conducted before Commissioner Cribb including having regard to the transcript of the hearing before her. Moreover, I also had regard to the decision of Senior Deputy President Richards in the matter of CEPU v UGL Resources Pty Ltd (Project Aurora) [2012] FWA 2966, in which the Commission discussed the ascertainment of the view as to whether a person is unable to represent themselves effectively (see [10] – [16]), with it being noted both that establishing an objective standard on the subject of the criterion within s.596 (2) (b) would be “particularly elusive” as well as:

“[16] It appears, then, that before permission to be represented can be granted, a person must be unable to represent himself, herself or itself effectively, and following the plain language definitions of the Macquarie Dictionary (Revised Third Edition) and the Australian Concise Oxford Dictionary (Third Edition), this means the person must be unable to represent himself, herself or itself in a manner that creates a “striking impression”, or which has an “impressive” effect or which is “powerful in effect”.

[8] In the circumstances, and after considering Mr Robinson’s submissions, which highlight the difficulties he perceived in continuing to represent himself, I was persuaded that he may be unable to create the “striking impression” referred to in CEPU v UGL Resources. As a result of these considerations, I granted permission to the Respondent to be legally represented in the proceedings before me, with Mr Zero Partos of Counsel appearing.”

Licastro v Patrick Robinson and Co (2018) FWC 5931 delivered 24 September 2018 per Wilson C