Tribunal rebukes solicitor for 'offensive' comments

Cases

Tribunal rebukes solicitor for 'offensive' comments

An employment tribunal has rebuked a solicitor for acting unprofessionally and undermining the integrity of the profession. The solicitor had accused an opposing lawyer in a redundancy dispute of being dishonest and telling lies.

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An employment tribunal has rebuked a solicitor for acting unprofessionally and undermining the integrity of the profession. The solicitor had accused an opposing lawyer in a redundancy dispute of being dishonest and telling lies.

The following cases illustrate matters involving legal representation, including the right to appear and questionable behaviour.

Solicitor rebuked for 'offensive' comments


The Victorian Civil and Administrative Tribunal has rebuked a solicitor for acting unprofessionally and undermining the integrity of the profession. He had made written allegations about the advocate for the other party in a redundancy dispute, including:
  • accusations the other solicitor was ‘fundamentally dishonest’ and ‘telling lies’, and
  • statements that the other solicitor had engaged in ‘deliberate and calculated’ dishonesty.
The tribunal found the behaviour went beyond robust exchange and became a personal attack. The solicitor’s conduct was extraneous to his client’s interests in the tribunal’s view:

"... it was offensive, because of the seriousness of the allegation that the solicitor was ‘fundamentally dishonest’. ...  It undermines co-operation between practitioners which is important to promote the efficient operation of the justice system, and the conduct of legal business."
                 
Sanctions will be determined later.
 
Victorian Legal Services Commissioner v M (Legal Practice) [2016] VCAT 21 (12 January 2016)

Legal team can appear –despite initial refusal


After initially refusing legal representation to an employer, Commissioner Ryan in the FWC reversed his decision as the applicant-employee was uncooperative:

“What started out as a relatively straightforward matter has developed into a difficult matter. The applicant’s conduct has made the matter much more difficult to deal with as the applicant has shown no preparedness to provide the Commission with email contact details nor to comply with directions issued by the Commission... 

"In the present matter I am prepared to revoke my earlier decision refusing permission for the respondent to be represented by a lawyer or paid agent and to now grant the respondent permission to be represented by a lawyer or paid agent..."

B v Dairy Country [2016] FWC 529 (27 January 2016) 

HR inexperience didn't warrant legal representation


An employer sought approval to have legal representation in an unfair dismissal case. It claimed its HR department did not have the requisite experience.

Senior deputy president O'Callaghan noted that the applicant-employee asked the commission to take into account her lack of legal experience. She asserted that because she could not afford a lawyer, it would be highly unfair if the employer was represented.

The commission agreed, saying it had "considered the extent to which a grant of representation should be issued on the basis that it would enable the matter to be dealt with more efficiently, because of its complexity. I am not satisfied that this is the case. The material before me does not establish a significant level of complexity other than determination of this issue on the facts".

HR's inexperience was not enough to warrant legal representation.

F v Sonic Innovations Pty Ltd [2015] FWC 8476 (8 December 2015) 

No level of complexity in case


Commissioner Ryan noted a matter raised by s596(2)(a) required that the Commission consider both the complexity of the matter and any efficiencies which may flow from having a party represented.

The arguments contended by the employer about complexity mostly went to the merits of the case.

The commission found there was no level of complexity in relation to the jurisdictional matter to be considered.

"The case law is well known to the Commission and the respondent’s representative would not be assisting the Commission in relation to case law..."

A v Douttagalla [2015] FWC 8676 (15 December 2015) 
 
The bottom line: The role of lawyers in employment/industrial relations jurisdictions is an important one. Courts and tribunals have to exercise discretion in relation to lawyers appearances so that an unrepresented party is not unfairly disadvantaged.
 
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