Representation in unfair dismissal cases

These passages from a Fair Work Commission unfair dismissal case deal with the legal principles involved when the Commission is aked to grant permission for paid agents to represent a party.


[15] The application of s.596 of the Act allows the Commission to exercise discretion to grant permission for legal representation in proceedings, however, this is not automatic. The discretion afforded to the Commission will be exercised on the facts and circumstances of the particular case, against the legislative tests. 3

[16] In considering the grant of legal representation, the Commission is required to establish that the prescribed conditions exist prior to exercising the discretion to grant permission. Accordingly, if the prescribed conditions are considered to be in existence, the discretion to grant permission for a person to be represented by a lawyer or paid agent will be exercised in favour of the person. This assessment of the prescribed conditions is an objective exercise. The submissions of both parties on legal representation have been taken into account.

[17] There is some complexity in the current matter, as the matter involves an assessment of the facts and evidence in relation to a series of allegations underpinning a dismissal for serious misconduct for a breach of confidentiality. The Applicant is arguing that there was a breach of his workplace right in that a complaint regarding matters with the CFO & Chairman were not dealt with prior to a show cause process was instituted with him. In addition, allegations of criminal conduct are referred to.

[18] With respect to the issue of fairness between the parties, the Commission’s role is to provide a fair process and the Commission has control of the process and the conduct of these proceedings. This is a matter where Directions have been set for the s.394 matters to enable the filing of material pertaining to the issues central to the dismissal. All of these will be taken into account, however legal representation will assist the efficient and effective conduct of the matter to allow for the consideration of the matters relevant to the dismissal in an orderly manner, noting there is some complexity to the matter. The Parties cases are very different. The Respondent relies on a show cause process which the Applicant alleges was instituted in response to his complaint. Further he argues the complaint process was not followed prior to termination. It is recognised that the Applicant is self-represented, and this will be given appropriate consideration to ensure a fair process is afforded at the hearing. A consent process was put in place (arising from the Directions conference) to enable the Applicant to seek procedural guidance, in preparing for the hearing from my Associate.

[19] As referred to, there is some complexity to the factual matrix to be assessed against the legal tests as to whether the alleged serious misconduct can be substantiated. Therefore, to assist in the efficient, fair and effective conduct of the matter, the Respondent, pursuant to s.596(2)(a) of the Act, is granted permission to be represented by a lawyer at the hearing for this matter. The Commission is responsible for providing a fair process to both parties, and the procedure will be controlled by the Commission, allowing for the equitable presentation of both cases.

[20] Accordingly for the reasons set out, legal representation is granted pursuant to s.596(2)(a) to enable the efficient presentation of a complex matter.”

McCarthy v Queensland Indigenous Family Violence Legal Service (2023) FWC 164 delivered 19 January 2023 per Spencer C