Plea for legal help rejected: HR up to the task

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Plea for legal help rejected: HR up to the task

The Fair Work Commission has rejected an employer's plea for legal representation during a bullying dispute, saying it already had the support of HR staff.

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The Fair Work Commission has rejected an employer's plea for legal representation during a bullying dispute, saying it already had the support of HR staff.

None of the parties were named in the judgment.

When the employer sought permission from the Fair Work Commission to have legal representation both for itself, and for the two senior managerial staff that had been accused of bullying, the applicant objected.

When can parties be represented by lawyers?


A lawyer or a paid agent can typically only appear before the Fair Work Commission with the permission of that Commission, although there are some limited exceptions (s596 Fair Work Act).

Permission can be granted if having a representative would enable the matter to be dealt with efficiently or to prevent unfairness. Lawyers who are also employees of an organisation (whether a business, a trade union or a peak body) also do not need permission.

Arguments of the parties


The employer argued that, although it had human resources staff on its payroll, those HR staff did not have any experience in conducting hearings or in cross-examining witnesses.

It also argued that the matter would be dealt with more efficiently if both itself and its managers were legally represented as there were contested facts and versions of events. There would also need to be a cross-examination, the employer said. All of these were factors that should lead to it being allowed to deploy lawyers.

In contrast, the applicant argued that the employer had “decades of human resources experiences cumulatively between various staff members, and university level qualifications to match” that it could call upon. The applicant argued that there were no questions of law and that the matter, despite being contested, was simple. The applicant conceded that there were a large number of documents to be examined.

Held by the Commission


Commissioner Simpson observed that, up to this point in the case, the matter had been dealt with “competently and effectively” by human resources staff.  And those staff had been using their expertise to support the named persons and to refute the applicant’s allegations.

“It is apparent that the persons named will receive the support of the employer’s human resources staff in the course of the hearing and as a result are at somewhat of an advantage over the applicant,” the Commissioner concluded.

Commissioner Simpson was also of the view that the employer had sufficient resources to represent itself as, after all, it was already using HR staff in this matter.

Finally, it was also considered by the Commissioner that the mere fact that cross-examination was required, and that there were large amounts of materials to examine, did not render a case so complex that lawyers must be used.

Commissioner Simpson refused to grant the employer permission to be represented by lawyers. 

Application by E.K. [2017] FWC3448

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