• Employer Granted Permission for Legal Representation in Unfair Dismissal Case Where Employer's In-House Representative Is Also Required to Appear as a Witness
  • May 31, 2016 | Author: Adam Salter
  • Law Firm: Jones Day - Sydney, New South Wales Office
  • Factual Background. In Wilcox v Holcim (Australia) Pty Ltd [2016] FWC 2359, the Fair Work Commission ("FWC") considered the operation of section 596 of the FWA in the context of an unfair dismissal claim made by the applicant (Wilcox) against the respondent employer (Holcim). At a directions hearing, Holcim sought permission to have legal representation under section 596, and Wilcox opposed the application.

    Legal Background. Section 596(1) of the FWA provides that permission is required before a person can be represented by a lawyer or paid agent in a matter before the FWC. Permission may be granted under s 596(2) if: (i) it would enable the matter to be dealt with more efficiently, taking into account its complexity; or (ii) it would be unfair not to allow it because the person would otherwise be unable to represent himself or herself effectively; or (iii) it would be unfair not to allow it, taking into account the fairness between the parties.

    Decision. Commissioner Simpson granted Holcim permission under section 596(2)(a) on the basis that the matter was sufficiently complex, but he also canvassed the alternative grounds raised by Holcim. First of all, he agreed it was reasonable in the circumstances for Holcim not to want its HR manager to act as representative and appear as a defence witness in the same matter. He noted that this state of affairs, as well as the fact that Holcim didn't have another suitable employee to represent it, would also have justified the granting of legal representation. In relation to the third element in section 596(2)(c), Commissioner Simpson said he was entitled to consider the relative experience of the representatives in determining whether it would be unfair not to allow Holcim legal representation. On the facts, Holcim would be represented by an inexperienced HR manager, whereas Wilcox would be represented by an experienced employment lawyer (by virtue of the exception in section 596(4)(b)(i) of the FWA). That section broadly states that a party is taken not to be represented by a lawyer if the lawyer is also an employee or officer of an organisation (in this case of the CSR & Holcim Staff Association). On this basis, taking into account the necessary fairness between the parties, the FWC held it would be unfair not to allow Holcim legal representation.

    Lessons for Employers. Employers faced with an unfair dismissal claim may be entitled to legal representation (rather than having to rely on an in-house representative) in certain circumstances. A clear exception is where the respondent is a small business with no specialist HR staff while the applicant is being represented by an officer or advocate of an industrial association. Importantly, the FWC will consider the relative experience of the representatives in determining whether it would be unfair not to allow a party to be represented. This is so even where the other party's representative is appearing by virtue of the exception in section 596(4) of the FWA.