Representation in unfair dismissal cases

The Fair Work Act assumes that a party to proceedings in the Fair Work Commission should not have the right to be represented by a lawyer or professional advocate. This ridiculous and disgraceful attack on a person’s right of choice was the result of a deal between the then Rudd Labor government and the trade union movement, which has virtually nothing to sell to recruit members except very rare representation in cases such as unfair dismissal.

This cosy arrangement was also supported by the federated organizations of employers for the same reason, namely to sell something to justify their existence to potential revenue making members.

It is a very stupid rule not just in its hypocrisy, but because it is more often than not ignored by the Fair Work Commission when its members recognize that parties who are not represented are likely to turn a one day hearing into a four day hearing because they cannot recognize the wood from the trees and are unable to bring to bear an objective and reasonable focus on what evidence and issues are relevant and what are not.

Experienced members of the Fair Work Commission were not consulted by the government about this.

One of the grounds upon which the Act permits members of the Commission to grant lawyers and professional advocates permission to participate in such proceedings is if “it would enable the matter to be dealt with more efficiently, taking into account the complexity of the matter”; see sec 596(1). How has this been interpreted?

Here is the answer.

“In respect of s.596(2)(a), even if legal representation would enable a matter to be dealt with more efficiently, a lack of complexity may still mean that permission is refused. 5 Sheer volume of documents or the existence of extraneous issues does not equate to complexity.6 While the consideration of complexity must be treated as a matter of significance in consideration of this criterion, ultimately the issue is whether the grant of permission would enable the matter to be dealt with more efficiently.7 There may be many grounds for a consideration of “efficiency” and familiarity with the subject matter, the conceptualisation and organisation of argument in the statutory context and marshalling of relevant materials may be matters that assist in the efficient conduct of the hearing of a matter, as may the increased alacrity with which cross-examination may be carried out, as well as familiarity with the Act and authorities in the context of a jurisdictional question.8 The expertise and familiarity with the issues before the Commission of human resource practitioners or in-house counsel may also be relevant.9

The relevant complexity in this particular matter is whether, in all the circumstances, the Respondent was entitled to direct Mr Fernandopulle to work in the Personal Finance Department, and whether he refused to do so.

I was satisfied that resolution of that question is a relatively confined matter that would potentially be more efficiently dealt with through legal representation on at least one side, and so permission for legal representation was granted.”

Fernandopulle v Taylors Business Pty Ltd T/A Cash Coverters Taylors Lakes (2018) FWC 2557 delivered 22 June 2018 per Wilson C