Must seek leave for representation at FWC
In a recent FWC decision, Commissioner Cambridge has rejected a party’s request to have representation by either a lawyer or paid agent in an unfair dismissal application. The decision highlights many of the key issues the FWC will consider when faced with such requests.
The former employee (TM) filed an unfair dismissal application on 11 August 2020, with both parties represented by paid agents during the initial unsuccessful conciliation proceedings. Prior to the scheduled Pre-Hearing /Conference on 17 September 2020, the FWC was advised by TM’s paid agent that they were ceasing to act on her behalf. Subsequently, she advised the Commission that she opposed permission being granted for representation to be allowed for her former employer. Commissioner Cambridge requested the parties to provide written submissions regarding representation.
In his decision, Commissioner Cambridge provided guidance by summarising s596 of the Fair Work Act (the Act) as well as two previous cases that covered similar ground being Warrell v Walton  FCA 291 and Stephen Fitzgerald v Woolworths Limited  FWCFB 2797.
Commissioner Cambridge noted the Act identified three factors to be considered which he paraphrased as
(b) inability/effectively; and
The submissions made on behalf of the employer emphasised that there was complexity arising from the serious grounds upon which the applicant was dismissed, and the matter involved factual disputes which required cross-examination of witnesses which would add to the complexity of the case.
In contrast, the applicant objected to the employer being granted permission for representation particularly as the employer was a large organisation with a breadth of in-house human resource personnel, and that the matter lacked the required complexity. To do so would place her at a significant disadvantage if the employer was represented by lawyers or paid agents.
The employer also asserted that the matter involved complexity because of the serious nature of the reasons for the applicant’s dismissal, and further complexity was said to arise from factual disputes that would require cross-examination of witnesses. In addition, it was asserted that complexity would arise from circumstances where the employer’s national HR manager, Ms Lawson, was likely to be called as a witness and required to represent the employer. It was submitted that these identified complexities would be dealt with more efficiently with the involvement of a paid agent
Commissioner Cambridge rejected all the employer’s arguments. In his decision, he noted “It is clear that the matter is not complex. The serious nature of the reasons for the dismissal of the applicant and the requirement for cross-examination of witnesses are issues and processes that regularly arise in unfair dismissal arbitrations”.
Regarding “Inability/Effectively”, he did not accept that it would be difficult for the employer’s national HR manager to provide evidence and also conduct the case, or that the employer’s human resources function did not include persons with expertise and experience in contested arbitration matters. He noted that the applicant would likewise be a witness as well as her own advocate.
Regarding “Fairness”, he noted that if the application was granted there would appear to be a significant imbalance created because the applicant would be representing herself while the employer obtained the assistance of external representation. The imbalance did not reflect the legislature’s desire for such proceedings to occur as an informal procedure not burdened by unnecessary formality.
Consequently, the permission sought by the employer to be represented by lawyers or paid agents was refused.
For queries about representation, employees, independent contractors or other employment questions, please contact Dean Cameron at Workforce Advisory Lawyers – We Know Employment Law on 0417 622 178 or via email to email@example.com
Disclaimer: This information is provided as general advice on workplace relations and employment law. It does not constitute legal advice, and it is always advisable to seek further information regarding specific workplace issues. Liability limited by a scheme approved under professional standards legislation.