Case in Point
A self-represented gardener suffering from brain-damage is set to have his unfair dismissal case re-heard after the Federal Court permitted his former employer to have legal representation in the initial case without sufficient reasons.PP1
Bacto Laboratories Pty Ltd dismissed the gardener in March 2011 after he swore at his manager.
The gardener, who was represented in his appeal by a law firm and two (2) barristers on a pro bono basis, asked Federal Court Justice Flick to set aside a Fair Work Commission (FWC) full bench decision, arguing that the gardener was denied a “fair and just” hearing under section 577(a) of the Fair Work Act 2009 (Cth) (FWA).
“The unfairness to [the gardener] had its roots in the failure at the outset… to apparently consider the terms of [the FWA] and the potential prejudice thereafter experienced by [the gardener] in being effectively cross-examined by a lawyer” without himself having legal representation.
Justice Flick stated that “the damage was done” [to the fairness of the gardener’s case] when Bacto Laboratories was granted permission to be represented, which could not have been an oversight. It was also unclear whether the gardener’s disabilities were taken into account at first instance.
A Second Chance
Recently, the FWC has refused permission to a law firm to represent an employer in an unfair dismissal matter.2 Commissioner Cambridge was not convinced that allowing the employer to have legal representation would advance the interests of resolving the matter efficiently.
The employee submitted that it would be unfair if one party had representation when the other did not, which Commissioner Cambridge accepted, stating that a resulting imbalance would create “great potential for the absence of a fair and just hearing”. Applying the decision in Warrell v Walton  FCA 291, Commissioner Cambridge refused the employer permission to be represented.
This case confirms that it is increasingly difficult for employers to retain a paid agent to represent them in an unfair dismissal matter where the employee is unrepresented or self-represented.
A barrister’s argument that her representation of an employer in an unfair dismissal case would allow the appeal to be dealt with more efficiently has been rejected by the FWC.3
In a wider message to litigants, the full bench of the FWC held that “just because the proceeding is an appeal it ought not be assumed that the Commission will permit a party to be represented by a lawyer or paid agent”, before citing Justice Flick from the previous case.4
Despite the fact that employer’s being able to use legal representation in unfair dismissal matter seems to be on the decline, an employer would remain entitled to seek legal advice on the matter.