The end of legal representation in unfair dismissal matters?

We believe it is a bit of a stretch to say that the recent FWC matter of Doyle v Millers [2014] FWC 7423 now means that it is impossible for parties to be legally represented at the Commission in unfair dismissal matters.  However, it’s certainly the case that in certain circumstances, it will now be more difficult to convince the Commission that legal representation will not result in an imbalance between the parties or result in some unfairness.

The circumstances of this case were that the employer, being a large retail organisation with a dedicated HR department was denied legal representation in the Commission against an unrepresented applicant on the basis that the qualifications and experience of those in the employer’s business.

The case looked at section 596 of the FWA which gives the Commission the ability to grant the parties to be represented by a lawyer or a paid agent.  This section sets out when the permission can be granted:

• When it will allow the matter to be dealt with more efficiently, considering the complexity, or
• If the person is unable to represent themselves, or
• Fairness for both parties

The commissioner believed that the issues surrounding the termination of employment (alleged constructive dismissal) did not appear to be particularly unusual issues.

However, whilst the decision made reference to denying legal representation, the actual decision made no reference to whether this also precluded representation by a paid agent as well as a lawyer or does it mean that a paid agent may have been permitted instead?  I suspect that the former is the correct interpretation of that decision but would be keen to hear the thoughts of anyone else who’s read the case.

So where does that leave lawyers and other advocates?  Are we delegated to a back seat when dealing with our larger clients on unfair dismissal matters?  What impact will this have on the speed and efficacy with which unfair dismissal cases are determined?

According to the FWC’s 2013-14 annual report, it failed to meet its unfair dismissal performance targets in the period.  This includes reaching only 79% of its target for settlement of unfair dismissal claims this year.   It will certainly be interesting to see how restricting legal representation from the process will impact on clearance rates at the Commission.