Would you or could you represent yourself in the Fair Work Commission?
So would you represent yourself in the Commission or the like? Easy you might say. Well actually, maybe not. However, you at times might be forced to.
There was some talk last year suggesting that following the FWC matter of Doyle v Millers [2014] FWC 7423 it is now impossible for parties to be legally represented at the Commission in unfair dismissal matters, which, at the time, we thought was a bit of a stretch to come to that conclusion. 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 case looked at section 596 of the FWA which gives the Commission the ability to allow 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? We 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? We do believe however, that if the matter is complex or it can be demonstrated that it would be more efficient to have a lawyer or paid agent, then it is likely that permission be will granted. And where does that leave Business Owners, Managers or even HR Professionals? We don’t all have the skills to do everything. This may be easier for HR Professionals than Business Owners or Managers as they are closer to it however HR is a ‘big beast’ and even they, depending on the individual and skills set may require assistance particularly with the trickier cases.
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. Statistically, if you are a lawyer or paid agent you have a 75% chance of succeeding. It is more difficult for non-agents or business owners to identify the issues and particularly jurisdictional issues and are therefore at risk of having to pay a much higher compensation than if advice or representation was sought. It will certainly be interesting to see how restricting legal representation from the process will impact on clearance rates at the Commission.
My advice is to get advice, it won’t cost as much as it could if you don’t. At least make up your mind after that. And if leave to have representation isn’t granted then you can get assistance with understanding the legislation, the FWC procedure and get your lawyer or other advocate to draft and prepare documents for the hearing.
In any case, having legal representation or the skills to represent yourself is no substitute for good industrial and employee relations in the workplace and, as I always say – There is more to compliance than mitigating risks!
At HR Business Direction we are able to assist with representation or preparing you for representation. Contact us here.
Leisa Messer BBus(HRM); GradDipIR; CAHRI; IRSQ
Managing Director | HR Strategist
leisa.messer@hrbd.com.au
07 3890 2066
www.hrbd.com.au