The Fair Work Commission (“FWC”) has held that an employer will be granted permission to have legal representation only in very limited circumstances when defending an application of unfair dismissal brought by an unrepresented employee.

The unrepresented employee applied to the FWC for an unfair dismissal remedy. Lawyers for the employer (Ashurst Australia) had applied to act on behalf of the employer, but the unrepresented employee objected on the basis that such representation would undermine the interests of justice and fairness.

The FWC held that legal representation will only be granted in three circumstances:

  • Where the complexity/efficiency of the matter requires legal representation;
  • Where the person is unable to represent himself or herself; or
  • Where fairness otherwise requires that the person be represented.

The FWC’s decision follows Federal Court authority denying employers legal representation where it will cause too great an imbalance between the parties that could create the potential for the absence of a fair and just hearing.

Azzopardi v Serco Sodexo Defence Services Pty Limited [2013] FWC 3405