Benchmark WA Industrial Relations Case Database

Wilcox v Holcim (Australia) Pty Ltd

[2016] FWC 2359 Fair Work Commission 2016-01-01 cited 1×
Source
Cited 1×
Treatment by later cases (1)
1 neutral
Applicant: Edward Wilcox
Respondent: Holcim (Australia) Pty Ltd T/A Humes

Ratio

The FWC granted permission for the respondent employer to be legally represented because the unfair dismissal matter was sufficiently complex and factually disputed (involving serious allegations of misconduct, credit assessment, and technical quality issues), it would be fair not to deny representation given the respondent's lack of in-house advocacy experience, and fairness between the parties required legal representation given the applicant's access to a highly experienced industrial lawyer employee of the union organisation.

Outcome

For applicant granted

Authority signal

Cited 1× Signal-weighted score: 1.0
Derived from how later decisions have treated this case. Dark green = leading authority, green = positively treated, grey = neutral or sparse data, amber = caution, red = treated negatively.

Key facts · 10

  • The Applicant terminated his employment with Holcim (Australia) Pty Ltd T/A Humes
  • The matter involved serious allegations of misconduct against the Applicant
  • Factual disputes existed concerning whether alleged events occurred and the Applicant's involvement
  • The investigation into alleged misconduct and the Applicant's candour during the investigation were in dispute
  • Technical matters concerning failed quality tests of products and the Applicant's understanding of quality procedures were relevant
  • The Respondent intended to rely on 5-6 witnesses; the Applicant on 2-4 witnesses
  • Common law duties of fidelity and confidence were engaged, with allegations of dishonesty
  • The Applicant is represented by Mr Port, who is an employee and officer of the CSR & Holcim Staff Association (a union organisation), a solicitor admitted in 2006 with 6 years prior experience as a Solicitor Advocate and Senior Solicitor
  • The Respondent's Human Resources Manager Ms Louise Elks was identified as a potential in-house representative but would also be a witness in the case
  • The Respondent's other human resources staff lacked legal qualifications and relevant advocacy or tribunal experience

Factors

For
  • Matter is factually complex involving disputed allegations of serious misconduct
  • Involves disputes about whether alleged events occurred and Applicant's involvement
  • Technical matters requiring exploration concerning failed quality tests and quality procedure understanding
  • Complex issues of witness credit and credibility assessment
  • Involves common law duties of fidelity and confidence and allegations of dishonesty, potentially engaging Briginshaw principles
  • Large number of witnesses (5-6 for respondent, 2-4 for applicant) requiring proper cross-examination
  • Applicant is represented by highly experienced industrial lawyer with 6 years prior law firm experience
  • Respondent has no in-house capacity approximating the Applicant's legal representative's skill and experience
  • Respondent's HR Manager (only viable in-house option) is also a witness in the case
Against
  • Applicant submitted the matter was not sufficiently complex to warrant legal representation
  • Applicant argued Ms Louise Elks (HR Manager) had sufficient capability based on previous experience
  • Applicant submitted other dedicated HR practitioner advocates could conduct the Respondent's case

Legislation referenced

  • Fair Work Act 2009 (Cth) s.394
  • Fair Work Act 2009 (Cth) s.596
  • Fair Work Act 2009 (Cth) s.596(2)
  • Fair Work Act 2009 (Cth) s.596(3)
  • Fair Work Act 2009 (Cth) s.596(4)
  • Fair Work Act 2009 (Cth) s.596(4)(b)(i)
  • Fair Work Act 2009 (Cth) Pt 2-3
  • Fair Work Act 2009 (Cth) Pt 2-6
  • Registered Organisations Act

Concept tags · 7

[P]Unfair dismissal (WA) [P]Unfair dismissal (federal) [P]Leave for legal representation [S]Dismissal for misconduct [S]Procedural fairness at dismissal stage [S]Employer compliance with own policy/procedure [M]Workplace investigation

Principles · 4

articulates para 4
The FWC may grant permission for legal representation under s.596(2) if it would enable the matter to be dealt with more efficiently taking into account the complexity of the matter; it would be unfair not to allow representation because the person is unable to represent themselves effectively; or it would be unfair not to allow representation taking into account fairness between the person and other persons in the same matter.
articulates para 16
A person is not taken to be represented by a lawyer or paid agent if the lawyer is an employee or officer of an organisation representing the person, but this does not preclude the FWC from considering the skill and experience of such advocates when determining fairness between parties.
articulates para 17
It is common for the FWC to give consideration to the skill and experience of advocates who appear by way of right under section 596(4) relative to the opposing party's in-house capacity in determining whether permission for legal representation should be granted.
cites para 5 · from [1938] HCA 34
Complex standard of proof considerations may apply in unfair dismissal cases, particularly those involving serious allegations where credibility assessment is central.

Cases cited in this decision · 2

Cited
[1938] HCA 34 — Briginshaw v Briginshaw
"…ssues in dispute will require proper and competent cross-examination. This is especially so in a case that may give rise to complex standard of proof considerations, for example the application of the principles...…"
Cited
(1938) 60 CLR 336 (not in corpus)
"…will require proper and competent cross-examination. This is especially so in a case that may give rise to complex standard of proof considerations, for example the application of the principles enunciated in...…"

Subsequent treatment · 1

Cited / considered· 1

Cited
[2019] FWC 1910 FWC — Mr Robert Shane Walters v Metal Maintenance Pty Ltd; Mr Wayne Buckleton; Ms...

Workplace Express coverage · 1

Unreasonable to expect in-house representative to perform dual role Company with one local employee not a small business Full bench remits unfair dismissal case for casual wrongly deemed permanent Unreasonable to expect in-house representative to perform dual role: FWC The FWC has allowed an employer to be represented by a lawyer in an unfair dismissal case, finding it unreasonable to expect its HR manager to run the case while also appearing as a defence witness. Holcim (Australia) Pty Ltd T/A Humes argued in a written submission that it would be unfair to refuse it representation because it did not employ a "suitable person to represent itself". But the CSR and Holcim Staff Association said the HR manager (who has almost a decade of experience with Holcim, BHP Billiton, Golden Circle and Australian Aerospace) was "more than capable" of representing the employer. The company countered that she had no "relevant advocacy or tribunal experience" and also that she would be appearing as a witness. Commissioner Chris Simpson didn't address the question of whether the HR manager had the capability to run the case, but said it was "reasonable" for Holcim "not to want" her "to conduct the case as well as be a witness". He also rejected the union's claim that Holcim had other HR practitioner advocates in-house to conduct the case, accepting they didn't have "relevant advocacy or tribunal experience". Commissioner Simpson said that it would be unfair to deny representation because the dismissed employee would be represented by a "highly experienced" industrial lawyer, the association's industrial and operating manager, Mark Port, who had previously been a solicitor advocate and senior solicitor for WG McNally Jones Staff Lawyers for six years. He said that the staff association was arguing that the Act's default position is that parties won't be externally represented, so the Commission should give no weight under s596(2)(c) to Port's background as a lawyer. "If I have correctly described what I understand to be the submission, I do not agree with it. "It is common for the FWC to give consideration to the skill and experience of advocates who appear by way of right under section 596(4) relative to the opposing party's in-house capacity in determining whether permission should or should not be granted. "It is evident Mr Port as a matter of fact is a highly experienced industrial lawyer, and [Holcim] has no in-house capacity approximating his level of skill and experience", Commissioner Simpson said. He also found the case sufficiently complex to justify representation. Wilcox v Holcim (Australia) Pty Ltd [2016] FWC 2359 (20 April 2016) Company with one local employee not a small business A company that employed just one Australian-based worker will have to defend an unfair dismissal claim, after the Fair Work Commission ruled it couldn't rely on the exclusion for small businesses because of its related entity in South Africa. Senior Deputy President Matthew O'Callaghan found that Perth garden products manufacturer and retailer Gardens of Italy did not meet the definition of a small business because it "must be regarded as an associated entity" to Johannesburg company Gardens of Italy Close Corporation (GICC). The husband and wife shareholders of Gardens of Italy are also the sole directors of GICC, which employed 21 people at the time they dismissed a retail employee who worked for about eight months in their Australian store. The senior deputy president noted that some products sold in the Gardens of Italy store were apparently made by GICC, but "more significantly" the husband and wife controlled both corporations consistent with s50AAA(7) of the Corporations Act. "There is nothing in that section, nor for that matter, in s23 of the FW Act which permits or requires that employees engaged by Gardens of Italy Close Corporation not be taken into account in counting the employees of Gardens of Italy for the purposes of the small business definition," he said. Senior Deputy President O'Callaghan said he was "obligated to conclude" Gardens of Italy did not meet the definition of a small business. He also accepted that the retail employee was able to pursue his unfair dismissal application because he had exceeded the six month employment threshold for larger companies under s383 of the Fair Work Act. The shareholders disputed the extent to which their South African company should be regarded as an associated entity. Director Marco Schmidt told Workplace Express he considered GICC and Gardens of Italy to be "disassociated businesses", as the former was a "close corporation" and the latter was established using "savings and private finance". He said the different employment climates in the two countries should also be considered, as lower wages meant South African businesses typically hired more employees. Schmidt said he was now considering closing down his Australian operation. Senior Deputy President O'Callaghan said he would refer the matter for conciliation but if it ultimately proceeded to arbitration, "issues associated with the size of the Gardens of Italy business" would be taken into account. Stephen Pretorius v Gardens of Italy Pty Ltd [2016] FWC 2503 (22 April 2016) Full bench remits unfair dismissal case for casual wrongly deemed permanent An FWC full bench has quashed an "incorrect" finding that a casual disability care worker was permanently employed and entitled to pursue an unfair dismissal claim. The Australian Industry Group intervened in Nardy House's appeal, arguing Commissioner Bernie Riordan in his ruling had not considered the meaning of "casual employee" under the relevant award as "one employed and paid as such". Rather Commissioner Riordan found a care support worker employed as a casual in September 2014 was a permanent part-timer because he worked "rostered regular and systemic hours over a long period of time". He also dismissed the payment of casual loading as "nothing more than an indication of the misunderstanding" between the employer and employee. The care support worker had asked Nardy House in August last year to explain why he was not rostered-on during a period in which a number of permanent employees were returning to work, and asked that he be made permanent. Commissioner Riordan found Nardy House "deliberately frustrated the contract of employment" by not offering further shifts "due to his [dismissal] application to the FWC and his complaint about the new rostering arrangements". Rejecting an argument that the support worker had excluded himself by refusing to participate in an "on-call" roster, Commissioner Riordan found he was unfairly dismissed and ordered his reinstatement on a permanent part time basis. Vice President Graeme Watson, Senior Deputy President Lea Drake and Commissioner Leigh Johns overturned the ruling last week, finding not only that he was a casual, but that Commissioner Riordan denied the parties procedural fairness in making his incorrect finding. "As both [the support worker] and Nardy House accepted that the employment was on a casual basis it was incumbent on the Commissioner to expressly raise the question if he was considering a contrary finding," the full bench said. "In our view the Commissioner did not put the parties on notice that such a finding was under active consideration and the parties thereby did not have an opportunity to deal adequately with the issue." The full bench also found the support worker was clearly employed on a casual basis, based on contractual documents, rosters, the way the employer consistently referred to him and the way he referred to himself in seeking permanency. "In our view, his employment status is to be determined by reference to his contract of employment and the applicable award," the full bench said. It said the Social, Community, Home Care and Disability Services Industry Award 2010 "incorporates the circumstances of engagement as the primary basis for casual status" and "also excludes full and part-time employees from the definition". "Therefore to qualify as a casual employee under the award, it is necessary to find, not only that Mr Perry was engaged and paid as a casual employee, but also that he was not a full time or part-time employee." The full bench remitted the unfair dismissal application to Commissioner Johns. Nardy House v Perry [2016] FWCFB 1621 (21 April 2016)
Archived text (1652 words)
Wilcox v Holcim (Australia) Pty Ltd [2016] FWC 2359 (20 April 2016) [2016] FWC 2359 FAIR WORK COMMISSION DECISION Fair Work Act 2009 s.394 —Unfair dismissal Edward Wilcox v Holcim (Australia) Pty Ltd T/A Humes (U2016/4050) COMMISSIONER SIMPSON BRISBANE, 20 APRIL 2016 [1] This decision involves an application for permission to be legally represented in an unfair dismissal application made pursuant to s.394 of the fair Work Act 2009 (the Act). The unfair dismissal application was made by Mr Edward Wilcox (“the Applicant”) who alleges that the termination of his employment with Holcim (Australia) Pty Ltd T/A Humes (“the Respondent”) was unfair. [2] The unfair dismissal matter was listed for directions on 5 April 2016 and was subsequently listed for hearing on 15, 16 and 17 June 2016 in Townsville. At the directions hearing the Applicant’s representative who is entitled to appear on behalf of the Applicant in accordance with section 596(4) of the FW Act opposed the Respondent being legally represented. [3] I provided the parties with the opportunity to make submissions as to whether the Fair Work Commission (FWC) should grant permission for the Respondent to be represented by a lawyer. [4] Section 596 of the Act provides as follows: 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 FWC. (2) FWC may grant permission for a person to be represented by a lawyer or paid agent in a matter before 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 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. (3) The FWC’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: (a) is an employee or officer of the person; or (b) is an employee or officer of: (i) an organisation; or (ii) an association of employers that is not registered under the Registered Organisations Act; or (iii) a peak council; or (iv) a bargaining representative; that is representing the person; or (c) is a bargaining representative. [5] The Respondent submits amongst other things resolution of the issues in dispute will require proper and competent cross-examination. This is especially so in a case that may give rise to complex standard of proof considerations, for example the application of the principles enunciated in Briginshaw v Briginshaw [1938] HCA 34 ; (1938) 60 CLR 336. [6] The Respondent submits that the matter is factually complex as it involves factual disputes concerning whether or not the alleged events occurred, whether or not the Applicant was involved, and the manner in which the investigation into the alleged misconduct was conducted, including whether the Applicant was candid with his employer during the investigation. [7] The Respondent submitted that matters of a technical nature as to the alleged failed quality tests of the products provided to the Respondent’s customers and the Applicant’s understanding of those quality procedures must also be explored. It is argued the disputed factual matters will ultimately be determined through the evidence of the parties as to what did and did not happen, involving witness examination and cross examination. [8] The Respondent said it will likely rely on the evidence of 5 or 6 witnesses and the Applicant 3 or 4 witnesses. The Applicant submits it is likely to have 2 witnesses. It was argued given the breadth of the evidentiary material to be relied upon by the parties, the matter will be more efficiently dealt with if the Respondent is provided with permission to be legally represented. [9] The Respondent submits issues concerning the common law duties of fidelity and confidence are also enlivened, given the allegation that the Applicant was dishonest in his dealing with the Respondent. [10] The Applicant submits that the matter is not sufficiently complex to warrant legal representation. The Applicant responded in some detail to the submission of the Respondent refuting the arguments set out above as put for the Respondent. I have read the Applicant’s submissions and do not intend to repeat them but have not been persuaded by those submissions that the matter will not involve complexity justifying legal representation. The allegations relied upon by the Respondent to terminate the Applicant are serious allegations, the matter will turn to some degree on the credit of witnesses and having lawyers representing both parties will be of assistance. [11] I am satisfied that this matter is sufficiently complex to exercise my discretion in favour of granting the Respondent legal representation on the basis that it will lead to greater efficiency in dealing with the matter. Whilst it is only necessary for the FWC to be satisfied of one of the elements set out in section 596(2) in order to decide to exercise discretion in favour of the grant of permission to appear, as each subsection was in dispute for completeness I will address each of them. [12] The Respondent also submits that it would be unfair not to allow it to be represented because it does not employ a suitable person to represent itself. The Applicant submitted Ms Louise Elks a Human Resources Manager, is more than capable of representing the Respondent given her previous experience. The Respondent submits firstly Ms Elks has no legal qualifications and does not have any relevant advocacy or tribunal experience, and secondly Ms Elks will be a witness for the Respondent. I am satisfied it is reasonable for the Respondent not to want Ms Elks to conduct the case as well as be a witness in the circumstances of this case. [13] The Applicant also submitted that the Respondent has other dedicated human resources practitioner advocates who could conduct its case. The Respondent said it does not employ any human resources personnel who are legally qualified or who have the requisite level of advocacy or tribunal experience. On the basis of the Respondents submission that it’s other human resources staff do not have relevant advocacy or tribunal experience I am persuaded that is a basis to grant the Respondent legal representation. [14] Finally the Respondent submits that it would be unfair not to allow it to be legally represented taking into account fairness between it and the Applicant, given the Applicant will be represented by a highly experienced employment and industrial lawyer who is entitled to appear in accordance with s.596(4)(b)(i) of the FW Act. [15] The Respondent submitted Mr Port (who will act for the Applicant) prior to assuming his current role as the Industrial and Operating Manager of the CSR & Holcim Staff Association, was a Solicitor Advocate and Senior Solicitor in the firm W.G McNally Jones Staff Lawyers for approximately 6 years. Further Mr Port has the knowledge of the history of the matter. [16] It is submitted for the Applicant that Mr Port is the Industrial and Operating Manager and also the only employee of the CSRHSA, as well as being a Solicitor on the Record who was admitted to practice on 6 October 2006 and currently holds a practicing certificate. It is said Mr Port is charged with carriage of the matter by the fact that he is the only employee of the CSRHSA, and that in accordance with the FW Act a person is taken not to be represented by a lawyer or paid agent if the lawyer or paid agent is an employee or officer of an organisation. Further it is argued s.596(2)(c) must not read or interpreted in isolation from the operation of s.596(4)(b)(i) [17] I understand the submission of the Applicant on this point to be to the effect that given the language of the FW Act states that the Applicant is not taken to be represented by a lawyer, therefore weight should not be given to the fact of Mr Port being a lawyer in making a determination under s.596(2)(c). If I have correctly described what I understand to be the submission, I do not agree with it. It is common for the FWC to give consideration to the skill and experience of advocates who appear by way of right under section 596(4) relative to the opposing party’s in-house capacity in determining whether permission should or should not be granted. It is evident Mr Port as a matter of fact is a highly experienced industrial lawyer, and the Respondent has no in-house capacity approximating his level of skill and experience. On that basis I am satisfied it would be unfair not to allow the Respondent to be represented by a lawyer taking into account fairness between it and the Applicant. COMMISSIONER Printed by authority of the Commonwealth Government Printer <Price code {A}, PR579056>