Experienced HR professionals considered capable of representing an employer

The Federal Court decision in Warrell v Walton has forced the Fair Work Commission (FWC) to operate on the basis of a presumption against representatives being permitted to appear in unfair dismissal proceedings.

Section 596(2) of the Fair Work Act (FWA) provides that the FWC may grant permission for a party to to be represented only if:

  1. it would enable the matter to be dealt with more efficiently, taking into account the complexity of the matter; or
  2. it would be unfair not to allow the person to be represented because the person is unable to represent himself, herself or itself effectively; or
  3. it would be unfair not to allow the person to be represented taking into account fairness between the person and other persons in the same.

It should also be noted that the Explanatory Memorandum to the Fair Work Bill 2008 states:

2291. [FWC] is intended to operate efficiently and informally and, where appropriate, in a non-adversarial manner. Persons dealing with [FWC] would generally represent themselves.

2296. In granting permission, [FWC] would have regard to considerations of efficiency and fairness rather than merely the convenience and preference of the parties.

In Warrell v Walton [2013] FCA 291 the Federal Court ordered the re-hearing of a brain damaged gardener’s unfair dismissal application after it found that the FWC had denied the gardener a fair and just hearing by allowing the employer to be legally represented.

Mr Warrell appeared as a self represented litigant in the FWC seeking an extension of time for the filing of his unfair dismissal application following the termination of his employment. The employer was represented during the proceedings by Mr Butterfield (a legal practitioner).

Mr Warrell’s application was refused and his subsequent appeal to the Full Bench was rejected by the FWC. Mr Warrell ultimately applied to the the Federal Court, on the grounds that the proceedings before the FWC were not ‘fair and just’ because the employer had been ‘impliedly’ granted permission to have a solicitor appear on its behalf.

The Federal Court agreed with Mr Warrell, quashing the orders of the Full Bench and finding that “the unfairness to Mr Warrell had its roots in the failure at the outset on the part of the Senior Deputy President to apparently consider the terms of s.596(2) and the potential prejudice thereafter experienced by Mr Warrell in being effectively cross examined by a lawyer. Having granted permission for Mr Butterfield to appear, the ‘damage was done’” [23].

His Honour Justice Flack also noted that “the appearance of lawyers to represent the interests of parties to a hearing runs the very real risk that what was intended by the legislature to be an informal procedure will be burdened by unnecessary formality. The legislative desire for informality and a predisposition to parties not being represented by lawyers emerges, if not from the terms of s. 596, from the terms of the Explanatory Memorandum…” [25]

The Warrell decision is now regarded as “the starting point for any consideration of a request for permission to be represented” Hart v Truss Guard Rail Pty Ltd [2016] FWC 3747 [3]. Its effect has seen a significant increase in the incidence of representatives being refused permission to appear.

In Azzopardi v Serco [2013] FWC 3405 Commissioner Cambridge determined that Serco had not met any of the three criteria in s.596(2) to justify legal representation and permission to appear was refused. On the issue of complexity, the Commissioner found that matters for consideration involved questions that routinely required determination in unfair dismissal proceedings and were not of sufficient complexity that they would be dealt with more efficiently with the assistance of representatives.

In considering the fairness between the parties, Commissioner Cambridge followed Justice Flick’s decision, finding that to allow Ashurst Australia to act against an unrepresented applicant would result in “something of an imbalance…[that] would create great potential for the absence of a fair and just hearing” [20].

The Commissioner also noted that the fact that a person may be required to be both witness and advocate is not relevant to the issue of whether that person can represent himself, herself or itself effectively.

See also:
Fleming v Sonic Innovations Pty Ltd [2015] FWC 8476
Barkho v Dairy Country [2015] FWC 8549
Hart v Truss Guard Rail Pty Ltd [2016] FWC 3747
Hines v WSH Group Pty Ltd T/A Watersun Homes [2016] FWC 3489
Welsby v Artis Group Pty Ltd [2016] FWC 675
Crozier v Grenfell Street Hospitality Pty Ltd T/A Ibis Adelaide [2016] FWC 699

What can you conclude from these case examples?

Parties to a matter must be granted permission to be represented in unfair dismissal proceedings before the FWC. The FWC will consider factors such as the complexity of the case, whether the party is able to effectively represent itself and whether representation will create unfairness between the parties.

In most cases, the granting of permission will be non-contentious, either because both parties have representation or because representation is desirable to promote efficiency and fairness in the determination of complex factual or legal matters.

However, representation may not be allowed in a range of circumstances, including where one of the parties is self represented or when the matters in dispute are simple. In addition,  an experienced and/or qualified HR professional will generally be considered capable of representing an employer even in circumstances where they are also a witness.

Finally, parties seeking to be represented should not assume that permission will be granted, and should be prepared to proceed in the event that their representative is not permitted to appear.


About Amnon Kelemen:

Amnon has 15 years of experience and expertise in the Fair Work Commission. He acts for employees across a range of employment related disputes including: unfair dismissal, adverse action, discrimination and underpayment. Amnon is the Director and Principal of Employee Assist.