Why assumptions should never replace good preparation


Why assumptions should never replace good preparation

When employers and employees appear at the Fair Work Commission, they do not have the automatic right to be represented by a lawyer.  Unlike in other jurisdictions, it is assumed a party will represent themselves, unless the FWC grants permission for a lawyer (or other paid agent) to appear.  The FWC can use its discretion to allow a lawyer to appear, but only if:

a)    it would be efficient to do so, in light of the complexity of the matter;

b)    it would be unfair not to, because the person cannot effectively represent themselves; or

c)    it would be unfair, taking into account other persons in the same matter.

In a recent decision, a FWC full bench sent a clear reminder that this test needs to be taken seriously when preparing to go to the Commission and that it should not be treated as a mere procedural decision.  In other words, if you have a Commission hearing coming up, or even a conciliation conference, you should not assume that your lawyer will “get a seat at the table” and be allowed to run your case, cross examine witnesses and make oral submissions to the Commission.

The Commission often makes its decision whether to grant permission on the day, so an adverse decision could leave a party’s lawyer fully prepared but sitting at the back of the room, while their client fends for themselves in a court-room scenario.

The thorough preparation for a Commission appearance requires a realistic assessment of whether or not permission to be represented will be granted, and ideally you would have received a decision about this issue ahead of time.  If your lawyer is denied permission, then someone from your management  or human resources team will need to have done their homework and be prepared to stand on their feet and run the case. This could include speaking to the presiding Commissioner, presenting evidence and arguments and cross-examining witnesses.

ERGT v Govender

The recent FWC case that has prompted this rethink is ERGT v Govender.  This was an unfair dismissal case in which the employer raised a “jurisdictional objection” and argued that the employee did not have the right to bring his case because he had been made redundant.

In the first decision and then again on appeal, the Commission stated that the “jurisdictional objection” in and of itself did not make the case “inherently complex”. This was a departure from a previous decision by a presidential member of the Commission which held that jurisdictional issues by their nature are complex and require familiarity with court and tribunal jurisprudence and authorities.  Despite this, the jurisdictional objection in the ERGT case was not found to be complex.  In coming to this decision, the Commission noted that the ERGT Court Book was only 40 pages long, that each party was calling only one witness and that the witness statements were one and two pages long.

The Commission also disagreed with ERGT’s argument that it needed legal representation because it would otherwise be unable to represent itself effectively. ERGT employed four human resources officers and had a senior management team, but ERGT argued that these officers did not have the requisite knowledge nor skills to effectively represent it at hearing. The FWC full bench decided that familiarity with FWC processes and rules was not required as the matter was only scheduled for a Determinative Conference. ERGT’s submissions were described as a bare assertion that it could not represent itself which was unsupported by any evidence.

Takeaways

The FWC full bench’s decision in ERGT v Govender is a reminder that permission for legal representation is not a procedural formality.  It is necessary to weigh up the criteria that the FWC must look at and whether the circumstances support the FWC exercising its discretion. The fact that a matter involves a jurisdictional objection does not make it “inherently complex”.

Parties who are due to appear in the Fair Work Commission need to be properly advised and prepared for all eventualities.  Lawyers can still be involved “behind the scenes” to assist with strategy, drafting documents and training on “court craft” so that you are prepared in advance on how to conduct your matter yourself and put your best case forward.

If you would like to discuss your particular circumstances and whether legal representation would be permitted under the Fair Work Act in light of this decision, and how that may impact your preparation to go to hearing, contact our Employment Law team.

 

~ with Emily Clapp, Graduate at Law

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