Guillemain v Woolworths Limited  FWC 4236 considered this question in a recent decision by the Fair Work Commission (the FWC), delivered on 15 August 2017.
Unlike in most courts and some tribunals, disputes in the FWC are intended to be self-represented. This is to promote accessibility for non-legally trained participants to resolve their matters, without being burdened by excessive costs and formality.
Mr Guillemain was a Team Leader at the Melbourne Liquor Distribution Centre in Laverton (MLDC), a business that is owned by a subsidiary of Woolworths.
He was summarily dismissed for committing a safety breach. Although Mr Guillemain accepted the breach had happened, he submitted MLDC had condoned his acts by failing to act on it promptly.
This case did not deal with whether or not the dismissal was unfair. This was an interim decision concerning only whether MLDC could be represented by a lawyer and whether Mr Guillemain could be represented by a paid agent (presumably a union representative or industrial advocate).
Criteria for permitting legal representation
The FWC may only grant permission for a party to be represented by a lawyer or paid agent if:
- it would improve efficiency, taking into account the complexity of the matter; or
- it would be unfair not to allow it because the person is unable to represent themselves effectively; or
- 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 matter.
If one or more of these factors are satisfied, the FWC may, in its discretion, grant permission.
The Commissioner found the facts were no more complex than any routine unfair dismissal case.
Further, the Commissioner did not believe MLDC or Guillemain were unable to represent themselves effectively. MLDC was a large organisation with experience dealing with employee relations matters, although he accepted its employees did not necessarily have advocacy experience. Mr Guillemain was an experienced team leader responsible for managing large numbers of employees. The Commissioner found that it would not be unfair to require both parties to represent themselves.
This decision was made in circumstances where neither representative had endeared themselves to the Commissioner. At the first mention/directions hearing (by telephone), at which both representatives confirmed their attendance, neither was unable to be contacted at the time of the hearing. The representative for MLDC had apparently dropped his phone in water and was unable to make or receive any calls, while the non-appearance by Mr Guillemain’s representative was the result of “an oversight”. Whilst there is no suggestion that this history had any bearing on the Commissioner’s decision, it highlights the point that a representative wishing to appear in the FWC should ensure they give the FWC every reason to believe their involvement will improve the efficiency of the case rather than hinder it.
What does this mean for you?
Permission to be represented is only required for hearings in the FWC. You can still obtain advice from a lawyer as to the merits of your claim and the processes involved. Your lawyer can also prepare documents and correspondence on your behalf and is usually permitted to attend at conciliation conferences with you.
If the matter is sufficiently complex or if the other requirements are satisfied, there is a good chance you will be granted permission to be represented by a lawyer at a hearing. This is of course one of the issues your lawyer will provide advice on at the start of the matter.
If you have an employment dispute or require any assistance on an employment-related matter, please get in touch with Tim Lethbridge or (when she returns from maternity leave) Elise Croft.