'Bullied' nurse granted legal aid in dismissal dispute

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'Bullied' nurse granted legal aid in dismissal dispute

The parties in an unfair dismissal matter have been granted permission to be represented by a lawyer or paid agent in the Fair Work Commission. The dismissed employee, if not represented, would be allowed to ask for legal advice during the proceeding.

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The parties in an unfair dismissal matter have been granted permission to be represented by a lawyer or paid agent in the Fair Work Commission. The dismissed employee, if not represented, would be allowed to ask for legal advice during the proceeding.

[Full text of this case: H v Calvary Health Care Adelaide Limited [2016] FWC 1495 (9 March 2016)]

Representation for complex matter


A nurse whose employment was terminated applied to the Fair Work Commission claiming unfair dismissal according to s 394 of the Fair Work Act 2009.

Issues for the commission to determine included the nurse’s claim she had experienced bullying and harassment from a work colleague as a result of a medication error, as well as allegations by the nurse’s colleagues that her conduct towards them had been threatening or intimidating and that she had coerced employees not to appear as witnesses and give evidence against her.

The nurse’s representative withdrew. The nurse told the commission she could not afford to pay for a lawyer and, as she had no knowledge of law or employee relations, she believed her employer would have an unfair advantage if it was legally represented at the hearing and she was not.

Consequently she sought to be represented by a lawyer or paid agent according to s 596 of the Act. The employer contended it did not have a representative skilled in the area of employee relations either, which put the company in the same position as the nurse.

The commission acknowledged the matter would involve a range of complex issues, including factual disputes about events leading to the nurse’s dismissal and the difficulty of dealing with witnesses where there was a potential for hostility and acrimony to arise. The involvement of legal representation for both parties would mean the matter could be dealt with more efficiently.

It was pointed out that the commission could grant permission for a person to be represented by a lawyer or paid agent only if: “it would enable the matter to be dealt with more efficiently, taking into account the complexity of the matter” (s 596(2)(a) of the Act), and if “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” (s 596(2)(c) of the Act).

Permission granted


Commissioner Platt granted the parties permission to be represented so the matter could be dealt with more efficiently.

If the nurse could not find a representative but would represent herself, the commissioner said, “she should be aware that she is able to ask for an opportunity to access legal advice at any point in the proceedings”.

The commissioner added: “I will ensure that the hearing is conducted in a manner which affords procedural fairness and to the extent permissible will assist [the nurse] with the procedural elements of the hearing”.

H v Calvary Health Care Adelaide Limited [2016] FWC 1495 (9 March 2016)
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