The opportunity to be represented by a legal representative (a solicitor, barrister or paid agent) in the Fair Work Commission (“FWC”) is not always an automatic right. There are currently no issues with having a solicitor represent the Company at a telephone conciliation for an unfair dismissal application. However, for hearings and any other form of conciliation or conference, we need to make submissions on behalf of the employer on each occasion.

The FWC has made a number of statements in relation to when legal representation will be granted.

In Stephen Woodward v Greyhound Australia Pty Ltd [2015] FWC 2105 (9 April 2015) the TWU objected to the Company having legal representation. Commissioner Cloghan said if he did not grant permission “an inequity or disparity would exist” between representation by an experienced TWU advocate and a HR person unfamiliar with the Commission’s dismissal proceedings.

It is common that the Commission will grant the employer the opportunity to be legally represented if the Applicant has legal or union representation. It is not the case where the Applicant is self-represented. Here are two cases where, even though the Applicant was self-represented, the employer was granted the right to be legally represented:

In Adam O’Connell v Wesfarmers Kleenheat Gas Pty Ltd T/A Kleenheat Gas [2015] FWC 2103 (7 April 2015), Commissioner Cloghan considered that the employer required legal representation where the Applicant denied all allegations of misconduct and it was argued that detailed cross-examination was going to be needed to “determine the truth of what happened on the alcohol ‘fuelled’ evening of a National Sales Conference“.

In Callychurn v Australia and New Zealand Banking Group [2015] FWC 4784 (14 July 2015) the ANZ Bank was granted the right to be legally represented because of the necessity of:

  • analysing an ASIC ban on the Applicant precluded her from engaging in credit activities for five years; and
  • considering ANZ’s allegations that the Applicant was dishonest and had failed to disclose outside business interests.

The Law Society of NSW has made a submission to the Productivity Commission’s current IR inquiry calling for automatically allowing all parties legal representation in contested Commission hearings.

The submission pointed out that unrepresented parties make Commission hearings slower and less efficient.

Lesson for Employers

In our experience most matters can be resolved at an early stage.

Preparation of a concise and detailed Employer’s Response, in both the Unfair Dismissal and General Protections Applications, is a key determinant for successfully negotiating a satisfactory settlement at conciliation.

If a matter is listed for a Hearing before the FWC, we assist in preparing submissions and witness statements which will place the employer in a better strategic and tactical position.

To date, we have successfully argued that legal representation was necessary in a number of complex cases that we have run. There are no surprises when we provide our submissions for the FWC to consider and decide prior to the hearing date.