The decision of the Fair Work Commission in Oratis v Melbourne School of Business [2014] FWC 2838 indicates a change in attitude of the Commission to legal representation. Emily Oratis sued the Melbourne School of Business (MSB) for unfair dismissal in the Fair Work Commission. Self-representation is the normal course at the Commission unless there is an application for the appointment of a lawyer or agent that is granted at the discretion of the Commissioner: s 596 Fair Work Act 2009 (Cth). MSB made such an application.

MSB advanced two arguments on the basis of s 596 for permission to appoint legal representation. Firstly, the complexity of the jurisdictional and evidentiary issues required the appointment of representation in order to efficiently resolve the matter. Secondly, self-representation would be unfair to the employer: the HR manager representing MSB was also a witness and there was no other suitable representative on staff. 

Only one of those arguments succeeded: that the complexity of the evidentiary issues required the appointment of legal representatives. The jurisdictional argument failed as the issue was primarily factual. The second argument failed because the Commissioner held that there is no conflict in an individual acting as a witness and a representative. To hold otherwise would create an automatic right to representation, contrary to the statute. 

Lessons for Employers
Employers should be aware that the decision does not entitle them to legal representation in the Fair Work Commission. However, it indicates that the Commission has somewhat relaxed its approach on this issue. Whether the employer is obliged to represent itself seems now to be a question of whether the HR manager tasked with appearing can efficiently address the matters raised. Raising issues that require specialist legal knowledge may therefore necessitate the Commission permitting the use of legal representatives. Importantly, in deciding whether MSB could represent itself, the Commissioner refused to take into account the skills of employees other than the HR manager.

Andrew Berriman