Should employer be allowed legal representation?

Cases

Should employer be allowed legal representation?

Complexity and fairness were two key factors considered by the Fair Work Commission when determining if this employer could be legally represented.

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The Fair Work Commission has granted permission for an employer to be legally represented in an unfair dismissal matter.

In making its decision, the commission provided insight into when permission is granted. 

Background 


Mr C was employed as general manager of sales at Shace Toop Trading (t/a Toop and Toop Real Estate). He claimed he was unfairly dismissed on 22 January 2018.  
 
The respondent opposed the application on the basis that Mr C was not protected from unfair dismissal because he earned more than $142,000 per year. Under section 382(b)(iii) a person is not protected from unfair dismissal if he or she earns more than $142K per year. Mr C disputed this. 

The matter proceeded to conciliation which did not resolve the issues. A hearing was set and the respondent sought to be legally represented. The applicant objected and this objection had to be resolved before the hearing could take place. 

The law 


Legal representation in a matter before the Fair Work Commission requires permission from the FWC (s596 FW Act).

The FWC may grant permission only if: 
 
(a) it is satisfied that it would make the hearing more efficient
(b) it would be unfair not to allow the person to be represented because the person is unable to represent himself, herself, or itself 
(c) it would be unfair not to allow the person to be represented taking into account fairness between the person and other persons (s596 (2)) 

Arguments 


The applicant argued that the respondent should be able to represent itself as it has a CEO with legal qualifications and a human resources team. 
 
The respondent submitted that the issues relating to the coverage of the Real Estate Award 2010 were complex and legal representation was necessary to minimise time and costs. 

Legal question 


The commission had to determine whether it would exercise its discretion and allow the respondent legal representation in light of the considerations of efficiency and fairness under s596 (2). 

Decision 


The commission noted that the default position was that parties represented themselves in the FWC. 

Section 596(2) Efficiency 


The commission stated that resolving questions in relation to the coverage of the Real Estate Award 2010 involved complexity and that determining the ambit of annual earnings could also raise some complexity depending on the arguments advanced. 
 
As the issues raised in the matter involved jurisdictional objections, deputy president Anderson stated: “As a general proposition, an application which raises substantive jurisdictional issues (such as whether the applicant was a person protected from unfair dismissal) involves an additional degree of complexity.” 
 
The commission ruled that the complexity involved favoured granting permission for legal representation. 

Section 596 (2) Fairness 


The commission noted that s596 (2) concerns itself with effective representation. In that respect, it did not accept the applicant’s argument that the respondent’s CEO or HR staff could represent Shace Toop. 

Deputy president Anderson found that the CEO was not a legal practitioner and did not have any particular expertise in industrial relations. It also found that Toop’s HR Manager often obtained specialist advice in relation to industrial matters. 

The commission found that these realities favoured granting permission for the respondent to be legally represented as both the CEO and HR manager could not ‘effectively’ represent Toop.

The commission then considered fairness. It emphasised that the applicant was self-represented and was a capable individual, however, he should not be punished for doing research and becoming familiar with Fair Work matters. The commission stated that this imbalance disfavoured granting permission. 

However, the commission concluded it should grant the respondent permission to have legal representation, but subject to some conditions to ensure the applicant was not unfairly prejudiced.

Those conditions included the following: 
  • The proceedings will be conducted by determinative conference, not open court, which is more suitable for a self-represented litigant. 
  • If necessary guidance will be given to the applicant in relation to taking and testing evidence. 
The bottom line: In a dispute before the Fair Work Commission, the starting point is that the parties are generally not allowed to have external legal representation. Companies with large resources available, particularly in the form of HR departments and in-house lawyers, are generally expected to represent themselves. However, the “no lawyers” rule can be overturned for a variety of reasons including complexity and fairness.

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