Legal representation in unfair dismissal cases

Here is an extract from a decision of the Fair Work Commission which sets out the principles which apply to the issue of whether legal representation will be permitted in unfair dismissal cases.

“At the beginning of the hearing on 31 March 2017 Baxter made an application to be represented by a lawyer, Mr Brad Swebeck from HWL Ebsworth Lawyers (HWLE). A determination of this issue was necessary to ensure that the manner in which the hearing was conducted was fair and just. 4

In Warrell v FWC the Federal Court held that,

“A decision to grant or refuse “permission” for a party to be represented by “a lawyer” pursuant to s 596 cannot be properly characterised as a mere procedural decision. It is a decision which may fundamentally change the dynamics and manner in which a hearing is conducted. It is apparent from the very terms of s 596 that a party “in a matter before FWA” must normally appear on his own behalf. That normal position may only be departed from where an application for permission has been made and resolved in accordance with law, namely where only one or other of the requirements imposed by s 596(2) have been taken into account and considered. The constraints imposed by s 596(2) upon the discretionary power to grant permission reinforce the legislative intent that the granting of permission is far from a mere “formal” act to be acceded to upon the mere making of a request. Even if a request for representation is made, permission may be granted “only if” one or other of the requirements in s 596(2) is satisfied. Even if one or other of those requirements is satisfied, the satisfaction of any requirement is but the condition precedent to the subsequence exercise of the discretion conferred by s 596(2): i.e., “FWA may grant permission…”. The satisfaction of any of the requirements set forth in s 596(2)(a) to (c) thus need not of itself dictate that the discretion is automatically to be exercised in favour of granting ‘permission’.”[at para 24]

[6] Section 596 of the FW Act provides as follows:

“Representation by lawyers and paid agents
(1)    Except as provided by subsection (3) or the procedural rules, a person may be represented in a matter before the FWC (including by making an application or submission to FWA on behalf of the person) by a lawyer or paid agent only with the permission of the FWC.
(2)    The FWC may grant permission for a person to be represented by a lawyer or paid agent in a matter before the FWC only if:

(a)    it would enable the matter to be dealt with more efficiently, taking into account the complexity of the matter; or
(b)    it would be unfair not to allow the person to be represented because the person is unable to represent himself, herself or itself effectively; or
(c)    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.”

[7] The applicant opposed the respondent being represented.
[8] In short the respondent submitted that determining an Application for Costs involves complex technical and legal issues, in relation to which the respondent should be permitted to have legal representation.
[9] After considering the submissions of the parties the Commission, as presently constituted, determined that allowing the respondent to be represented by a lawyer would enable the matter to be dealt with more efficiently, taking into account the complexity of the matter. 5 Permission was granted pursuant to s.596(2)(a) of the Fair Work Act (FW Act).”

Portelli v Baxter Healthcare Pty Ltd T/A Baxter Healthcare (2017) FWC 2523 delivered 9 May 2017 per- Johns C